Summary
In Quality Outfitters, supra, the appellant appealed from an order denying a motion to quash a subpoena in that part which required the production of documents.
Summary of this case from Buchen v. Wisconsin Tobacco Co.Opinion
May 6, 1958 —
June 3, 1958.
APPEAL from an order of the circuit court for Milwaukee county: Wm. F. SHAUGHNESSY, Circuit Judge. Dismissed.
For the appellant there were briefs and oral argument by Milton S. Padway of Milwaukee.
For the respondents the cause was submitted on the brief of Robert A. Hess and Hess Chernov, all of Milwaukee.
The appeal is from an order which denied appellant Risko's motion to suppress a discovery examination and which, while imposing some limitation on the examination, failed to limit it to the extent he desired.
Plaintiffs (respondents) procured from Court Commissioner Sammarco a subpoena duces tecum commanding appellant Risko to appear for adverse examination under the provisions of sec. 326.12, Stats., on July 29, 1957, bringing with him described business records, correspondence between parties to the action, and other designated documents. This subpoena was served on Risko simultaneously with service of the summons in the action, a copy of the notice of taking the examination, and a copy of respondents' affidavit setting forth the necessity of the examination to discover facts sufficient to enable respondents to plead.
On the return day Risko appeared specially by counsel before the commissioner to object to the commissioner's jurisdiction. When the commissioner ruled that he had jurisdiction, Risko procured an order to show cause returnable before Judge CANNON of the circuit court for Milwaukee county. On the hearing of that order Risko, by counsel, challenged the jurisdiction of Commissioner Sammarco. Risko's brief informs us that Judge CANNON "overruled the special appearance and ordered the appellant to appear for examination on Wednesday, August 7, 1957," but such order was not reduced to writing.
On August 7th Risko again appeared specially by counsel and obtained a second order to show cause returnable before Judge SHAUGHNESSY, also Judge of the circuit court for Milwaukee county, on August 12th. Upon the hearing of this order to show cause, Judge SHAUGHNESSY, on September 20, 1957, entered the following order:
"It is ordered, That this court will not review the decision of the Honorable ROBERT C. CANNON, circuit judge, concerning the issue of jurisdiction of the court commissioner herein.
"It is further ordered, That the motion of defendant, H. Charles Risko, to suppress the discovery examination of the defendant, H. Charles Risko, be and the same hereby is denied.
"It is further ordered, That the motion of the defendant, H. Charles Risko, to quash the subpoena duces tecum ordering the said defendant, H. Charles Risko, to produce documents at the hearing be and the same hereby is denied.
"It is further ordered, That the court will limit the examination and the documents to be produced by the witness to those records, books, and documents that have a direct bearing upon the issues indicated by the affidavit and subpoena. That is, all books records, and documents in the possession of the witness or under his control as an officer of a defendant corporation relating to the transactions between Risko, the witness, and Max Teper, another defendant, or any other defendant named, are to be produced upon examination of the witness subpoenaed, excluding any documents relating to any foreign, immaterial, and irrelevant relationship between the witness and his attorney, not relating to the transactions in question between Risko and Teper. As to transactions between Mr. Padway and Risko in relation to this transaction, the court holds subject to examination and proper."
This is the order from which Risko presently appeals.
This order is not appealable. It is not found among those orders named or described as appealable by sec. 274.33, Stats., 34 West's Wis. Stats. Anno., Title 25, p. 147.
Appellant submits that it is included there, being an order which decides a question of jurisdiction. A reading of the order is sufficient to show that it was Judge CANNON'S order which determined jurisdiction. This appeal is not from that order. The order appealed from expressly refused to review Judge CANNON's decision on the jurisdictional issue.
The order here on appeal denied Risko's motion to suppress the discovery examination. Such orders have been expressly held nonappealable. Milwaukee Corrugating Co. v. Flagge (1920), 170 Wis. 492, 175 N.W. 777; Hyslop v. Hyslop (1940), 234 Wis. 430, 291 N.W. 337. In State ex rel. St. Mary's Hospital v. Industrial trial Comm. (1947), 250 Wis. 516, 519, 27 N.W.2d 478, we commented on these two cases, saying that they hold that orders relating to the taking of adverse examinations, since they merely regulate procedure, are not appealable."
The order denied the motion to quash the subpoena in that part which required the production of documents. If this is treated as an order refusing to suppress the examination in part, it is no more appealable than the order refusing to suppress the entire examination. More accurately, in this respect the motion was one to limit the examination. The order of the court did limit the examination, though not as drastically as appellant desired, as can be seen by a reference to the order itself. Such orders of limitation are not appealable. Dobbert v. Dobbert (1953), 264 Wis. 641, 60 N.W.2d 378; Will of Block (1953), 264 Wis. 471, 59 N.W.2d 440.
Risko contends that in this particular case to compel him to produce his books and papers infringes his constitutional right not to incriminate himself, and also violates the privilege between attorney and client. If among such documents there are privileged communications and some of them would tend to convict Risko of crime, that does not give appealability to the order requiring Risko to bring them to the examination. There, when and if he is required to put them in evidence, he may make these objections as well as any others which occur to him and the court commissioner will rule. If dissatisfied, Risko may have the question and ruling certified to the circuit court. See "Discovery Practice in Wisconsin, "Lay, 1954 Wisconsin Law Review, 452, 453.
Finally, appellant submits that the subpoena requires a production of books and papers and permits their inspection by the adverse party and an order to that effect is appealable.
An order to that effect, obtained under sec. 269.57, Stats., is appealable as we have frequently held. Hudson v. Graff (1948), 253 Wis. 1, 33 N.W.2d 174. That order is issued only upon notice and hearing. It is quite a different thing in its origin and effect from a subpoena duces tecum. As we said in Appleton v. Sauer (1956), 271 Wis. 614, 616, 74 N.W.2d 167, the two proceedings are not to be confused.
We return to our initial position: This is not an appealable order. We have no jurisdiction to entertain an appeal from it. First Wisconsin Nat. Bank v. Carpenter (1935), 218 Wis. 30, 259 N.W. 836; Sioux Land Co. v. Ewing (1912), 148 Wis. 600, 135 N.W. 130. Our only jurisdiction is to dismiss the appeal. Fox River P. Co. v. International Brotherhood (1943), 242 Wis. 113, 7 N.W.2d 413.
By the Court. — Appeal dismissed.