I concur in the result reached by my associates that the motion to quash the writ should be sustained and the proceeding dismissed, but I do not arrive at that result so reluctantly as do my associates.
The statute relating to perpetuation of testimony provides that the applicant must produce a petition stating among other things: "a general outline of the facts expected to be proved." Sec. 10687, Rev. Codes. This very language shows clearly that the applicant need not set out the facts expected to be proved *Page 592 with the same particularity necessary to the statement of a cause of action in a complaint. A general outline is all that is necessary. Even in an action already filed the plaintiff may not be required to give the particulars regarding facts of which his adversary already had knowledge or means of knowledge, (41 Am.Jur., "Pleading," sec. 272) or where it appears from the nature of the pleadings that the party demanding them has presumably a better knowledge of the matter than his adversary. (49 C.J. 639.)
Here it is alleged that "George Woodard and Mable Woodard Eyman have appropriated for themselves property which in fact belonged to Argo Woodard, deceased and to Emma Woodard, deceased; * * * That the said George Woodard and Mable Woodard Eyman deny said property belonged to said deceased persons; * * * that the said George Woodard and Mable Woodard Eyman know, and have records, books, accounts and papers which will show the facts and circumstances pertaining to such appropriation and to the extent of said damages."
Obviously, if the persons named appropriated property belonging to the estate in question they know what property is involved. Likewise, as alleged here, if they deny that the property belonged to the estate they must know what property is claimed to have been appropriated. I think the petition clearly meets the statutory requirement that it contain a general outline of the facts expected to be proved.
The case of State ex rel. Smith v. District Court, 112 Mont. 506,118 P.2d 141, 142, involved this allegation, "that the applicant expected to be a party to an action in which the relators would be the adverse parties; that he expected to prove that relator J.W. Smith is the owner or manager of a certain store, with power to contract respecting it, and that the store was operated between certain dates with a profit, and finally that he was entitled to one-fourth (1/4th) of the profits." In holding this allegation sufficient this court said: "While the application for the perpetuation of relators' testimony is not as definite and certain as it might be, particularly as to the *Page 593 nature of the plaintiff's contemplated action against relators, yet it seems sufficient to meet the requirements of the statute."
Since the petition meets the requirements of the statute, nothing more was necessary, and the applicant was thus entitled to the order complained of. State ex rel. Holcomb v. District Court, 54 Mont. 574, 172 P. 329.
I think this result follows no matter what the purpose of the statute may have been. This court has no right to say that the statute is not a discovery statute and then attempt in each case to determine whether the applicant is attempting to use it as a discovery statute. When this court finds that the applicant has followed the statute, it cannot and should not do more in the way of an endeavor to ascertain whether applicant is on a fishing excursion. Few witnesses testify exactly as they are expected to. Does that transform the entire proceeding into a fishing expedition? If not, where is the line to be drawn.
I agree too that the validity of the order in question here must be determined without any reference to the attempt after the making of the order to have the witnesses produce books or papers. I think, however, in view of what was said on that subject in the case of State ex rel. Pitcher v. District Court,114 Mont. 128, 133 P.2d 350, and State ex rel. Smith v. District Court, supra, the subject should be given consideration by this court at this time.
I think this court was in error in both of those cases in holding that the production of books and papers violated the Constitution against unreasonable search and seizure. The court in the Smith case stressed section 9771, Rev. Codes, but apparently overlooked the last sentence in that section, reading: "This section is not to be construed to prevent a party from compelling another to produce books, documents, or papers, when he is examined as a witness."
When the order is made to take the testimony pursuant to sec. 10687, the person designated as the officer before whom it will be taken may issue a subpoena duces tecum under sec. 12180 without any other court order. The question then would *Page 594 be whether the subpoena duces tecum intelligibly described the books, papers or documents. If the subpoena sufficiently described the books, papers and documents, they should be produced. If they are thought to be irrelevant or immaterial or constituted an unreasonable search or seizure, objection should be made to their use and the point is preserved and saved and can be again raised if and when the evidence is sought to be used at the trial under section 10691, Rev. Codes.
I think the Pitcher case, supra, which was argued while I was a member of the court but which was not decided until my term expired, went far afield in holding that the petition there involved was not made in good faith and in characterizing the proceeding as a fishing expedition. If the statute is complied with, and I think it was in that case, as well as in this, then the fact that the use of the proceedings relating to the perpetuation of testimony accomplishes an investigation of the facts or some part of them before commencing the action is no reason why the proceeding should be condemned as a fishing expedition.
The proceeding promotes the policy of sifting out the facts before trial and even before action is commenced much the same as pretrial conferences. Books and papers were examined in State ex rel. Holcomb v. District Court, supra, and that case has ruled these matters for more than a quarter of a century until the Smith and Pitcher cases have injected confusion and uncertainty in the procedure. I think both of them should be overruled, so far as they treat of the production of books and papers, as passing upon a constitutional point prematurely and without having before the court sufficient evidence as to the nature and character of the books, papers and documents to arrive at any intelligent opinion as to whether they constituted unreasonable searches or seizures. The Pitcher case should be overruled in its entirety. I find no justification in law for this court to hold out the promise that it will examine each of these applications, when requested to do so, after other remedies are exhausted, to see whether in the opinion of this court it is made *Page 595 in good faith to perpetuate testimony or whether the applicant has embarked upon a fishing expedition.
I think in this case the order made was proper and that this application should be denied and dismissed.
I disagree with my associates in their adroit effort at this stage of the case to provide an avenue of escape from contempt charges on the part of the witnesses if they refuse to testify. In effect my associates hold that the application for perpetuation of testimony is sufficient to sustain the order but that it is too indefinite to form issues upon which witnesses may be interrogated.
In my opinion the petition is sufficient to meet both of these objections. Furthermore, I think this court should not at this early date foreshadow its conclusion that the witnesses in this case will not be guilty of contempt if they refuse to testify. In effect the court has said to the witnesses whose testimony is here sought that in response to the questions they may simply assert, "on the advice of the Supreme Court we refuse to answer." We should so construe and apply the statute as to give effect to its clear intent and purpose, and this whether we as individuals have likes or dislikes for the statute and its operation.
I think, if the petition is sufficient to justify making of the order — and I feel sure it is — it is likewise sufficient basis for the propounding of questions relating to the general outlined statement and that the witnesses should be compelled to answer them.