George v. Bode

175 N.W. 939, 170 Wis. 411, 1920 Wisc. LEXIS 31

• Court: Wisconsin Supreme Court
• Decided: January 13, 1920
• Status: Published

Opinions

Winslow, C. J.

Conceding for the purposes of the case that a nonresident may legally be required by statute to appear within this state and submit to an examination under sec. 4096, Stats., as a condition of maintaining his action, the question presented is whether, at the time the order in question was made, namely, March 31, 1919, the statute so provided.

At that time sec. 4096 contained two provisions bearing on the subject. Sub. 3 of that section provided that

“The attendance of the party to be examined . . . may be compelled upon subpoena and the payment or tender of his fees as a witness. If the party . . . is a nonresident of this state, the court may upon motion fix the time and place of such examination. He shall attend at such time and place and submit to the examination

Sub.- 6 provides that

“Such examinations shall not be compelled in any other county than that in which the party to be examined resides, except as hereinbefore provided; provided, however, that whenever plaintiff or defendant is a nonresident of this state his deposition may be had under the provisions of this section in any county in the state, if he can be personally served with notice and subpcena.”

The italicised clauses were added to the section by ch. 84, Laws 1909, and the argument is that they show that the legislature intended thereby to empower the court to fix the time and place of a nonresident’s examination within the state. Otherwise, it is said, the clause in sub. 6, “except as hereinbefore provided,” has nothing to refer to. The argument is not without its weight, but on the other hand the special provision still appears, to the effect that the deposition of a nonresident may be taken in any county of the state if he can be personally served with notice and subpoena.

This seems to us very persuasive. It is almost, if not quite, the expressio unius which excludes anything else. The examination may be taken in this state if he can be personally served with notice and subpcena; the inevitable inference is that it is only if he can be so served that he can be so examined. If the provisions of sub. 3 meant that the court might fix a time and place for his examination within this state regardless of the personal service of notice and subpcena, then the provisions of sub. 6 regarding nonresidents would be wholly unnecessary.

These considerations move us to construe the statute as not empowering the court to order the examination of a nonresident to take place within this state when he cannot be personally served with notice and subpcena.

Attention is called to the fact that the legislature of 1919, by ch. 239, amended sub. 3 above quoted by adding the words “either within or without the state” to the clause authorizing the court to fix the time and place of examination. This makes it clear that the legislative idea now is to leave it in the discretion of the trial judge to say whether a nonresident be examined in this state or at his domicile.

There may be important and serious questions raised and argued when an order is made under this statute compelling a party in a distant state to appear in Wisconsin for examination under sec. 4096. We sliall not anticipate those questions now.

• By the Court.- — Order affirmed.