A bill of discovery will lie as ancillary to the maintenance of a suit then contemplated to be brought by the petitioner. Wolf v. Wolf's Ex'r, 2 Har. G. (Md.) 382, 18 Am.Dec. 313. In such cases the bill must show a cause of action existing in aid of which the discovery is sought. 18 C.J., title, Discovery, §§ 4, 17, and 18; 9 R.C.L., title, Discovery, §§ 2, 9, and 11.
Appellants assert the bill is insufficient because it fails to show that either of them are indebted to the petitioner and for this reason fails to show a cause of action against them.
The nature of the case as made by the bill is briefly outlined in the opinion heretofore rendered upon the motion to dismiss. No attempt was there made to particularly state the allegations of the bill and there is no occasion now to do so. Suffice it to say that in our opinion the bill sufficiently alleges respondents are indebted to the petitioner on account of premiums collected on bonds issued and delivered by them as agents and attorneys in fact for the petitioner and the petitioner is entitled to an accounting against respondents in that respect. The information sought to be elicited by the interrogatories propounded are pertinent and necessary in that connection.
The bill alleges:
"That upon information and belief, plaintiff alleges that defendant P. R. Clark Company, a corporation, was organized by defendant, P. R. Clark, for purposes and reasons unknown to plaintiff herein, but well known to defendants and each of them and that the said defendant, P. R. Clark Company, was an agent, broker or partner of defendant P. R, Clark and connected with the said P. R. Clark in the administration of his duties and activities alleged herein. * * *
"That plaintiff further alleges, upon information and belief, that defendant, P. R. Clark and/or P. R. Clark Company and/or both of said defendants are now indebted to plaintiff herein for premiums upon said bonds and that plaintiff is and will be unable to determine the exact status of said indebtedness and account unless defendants herein and each of them are required to give true, correct and faithful answers under oath to the interrogatories attached hereto. * * *"
The fact that these allegations were made upon information and belief does not make the bill simply a "fishing" one. A "fishing bill" has been defined to be one which "shows no cause of action," and which "endeavors to compel the defendant to disclose one in the plaintiff's favor." Carroll v. Carroll, 11 Barb. (N.Y.) 293. This definition was approved by Judge Gaines in Ewing v. Duncan, 81 Tex. 230, 16 S.W. 1000.
The purpose of our discovery statute (article 2002, R.S.) is to compel discovery of matters which are not certainly known to a litigant, and his allegations respecting such matters must necessarily be based upon information and belief. Beaman v. Sanger Bros. (Tex.Civ.App.)32 S.W.2d 872.
The demurrer was properly overruled.
Affirmed.