Summary
holding that “[t]his type of judgment is appealable” and citing Mosseller
Summary of this case from D.R. Horton, Inc. v. Ferrari (Ex parte Ferrari)Opinion
No. 9975.
April 28, 1964.
Appeal from the Third District Court, Salt Lake County, Stewart M. Hanson, J.
McBroom Hyde, Salt Lake City, for petitioner and respondent.
Brayton, Lowe Hurley, Salt Lake City, for appellants.
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. This type of judgment is appealable. We raised the jurisdictional question sua sponte.
4 Moore's Federal Practice 1825 and cases cited therein.
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.
McDONOUGH, CALLISTER and WADE, JJ., concur.
CROCKETT, J., concurs in the result.