Bainum v. Mackay

391 P.2d 436, 15 Utah 2d 295, 1964 Utah LEXIS 249

• Court: Utah Supreme Court
• Decided: April 28, 1964
• Docket: No. 9975
• Status: Published

Opinion

HENRIOD, Chief Justice.

Appeal from a judgment permitting Bainum to take depositions before action commenced, under Rule 27(a) Utah Rules of Civil Procedure. Reversed, with instructions to dismiss the petition. Costs to appellants.

Appeal was taken August 15, 1963, and appellants’ brief was filed on September 17, 1963. Bainum’s counsel failed to file any brief at all, and did not appear at oral argument before this court on April 24, 1964.

We have examined the petition and conclude that its contents, tenor and purpose did not justify invocation of the rule, being in the nature of a fishing expedition for the purpose of preparing a complaint. The rule has been held unavailable simply for that purpose.¹ This type of judgment is appealable.² We raised the jurisdictional question sua sponte.

McDonough, callister and WADE, JJ., concur. CROCKETT, T., concurs in the result.

1 . 4 Moore’s Federal Practice 1825 and cases cited therein.

2 . Mosseller v. United States, 2nd Cir., 158 F.2d 380 (1946) : “The order authorizing " the taking of the deposition is a final order for the purpose of appealability, because it grants all the relief sought in the petition and disposes of the proceeding.” See cases cited therein.