Guy v. Baer

55 S.E.2d 501, 230 N.C. 748, 1949 N.C. LEXIS 446

Opinion

DeNNY, J.

After a careful consideration of the plaintiffs’ affidavit and application for an order to examine certain of the defendants in order to obtain information necessary to the preparation and filing of their complaint, we do not think the information sought is set forth with the particularity required by the statutes G-.S. 1-569-570, as construed by the decisions of this Court, or its materiality shown. Sudderth v. Simpson, 224 N.C. 181, 29 S.E. 2d 550; Washington v. Bus, Inc., 219 N.C. 856, 15 S.E. 2d 372; Knight v. Little, 217 N.C. 681, 9 S.E. 2d 377; Bohannon v. Trust Co., 210 N.C. 679, 188 S.E. 390; Whitehurst v. Hinton, 184 N.C. 11, 113 S.E. 500; Fields v. Coleman, 160 N.C. 11, 75 S.E. 1005; Bailey v. Matthews, 156 N.C. 78, 72 S.E. 92. Moreover, it is stated that the purpose of the action is to have certain contracts, entered into between the plaintiffs and the defendants on 22 January, 1949, declared null and void, but no reason is assigned or explanation given as to why the contracts should be so declared. Smith v. Wooding, 177 N.C. 546, 94 S.E. 404.

An order for an adverse examination will be allowed only in an action pending between parties, McIntosh’s N. C. Practice & Procedure, p. 1020. It follows, therefore, that an order for an adverse examination should never be allowed for the purpose of ascertaining whether or not a cause of action exists.

The judgment of the court below is

Affirmed.