#### Noonan vs. Orton and McNab.

*Order to compel discovery : What affidavits must show.*

1. Under tbe present C. O. Bules, 5-7, a plaintiff who applies for an order of court to compel tbe discovery of documents under tbe control of de fendant, wbicb may be necessary to enable sucb petitioner to frame bis complaint, must not only show by bis affidavits that be “ is advised by bis counsel and verily believes ” that they are necessary for that purpose, but must also state “ facts and circumstances ” from which the court can see that sucb necessity exists.

2. *It seems*to be unimportant whether such an application is made by a formal *petition.*

APPEAL from tbe County Court of *Milwaukee*County.

Tbe defendants appealed from an order of tbe county court, tbe character of which is stated in the opinion.

*John J. Orton,*one of the defendants, in person, to the point that the application should be by *petition,*and not by affidavit, *601cited Eule 6, Eules of 1857 ; Eule 55, Eules of 1849 ; 6 How., 898; 5 id., 451; 2 Sandf., 662; N. Y. Code, 735, see. 88, and cases cited. 2. To tbe point that the affidavits should disclose the facts fully, so as to enable the court to judge of the necessity and relevancy of the evidence sought, he cited 1 Duer, 652, 661; 6 id., 695; 10 Abb. Pr. E., 840 ; 6 How. Pr. E., 398; 17id., 480 ; 18 id., 519 ; 26 id., 177; 2 Sandf., 662. 3. To the point that the order should not be made when it is manifest that the party applying has no cause of action or ground of defense, as the case may be, he cited 2 Bosw., 669.

*Jason*Downer, for respondent,

to the point that the application should not have been denied because not in the form of apetition, cited *Johnson v. Silver Mining*Ob., 2 Abb. Pr. E. (N. S.), 413 ; C. C. Eule 28, He also contended that the plaintiff’s affidavit in this case showed clearly the nature of the document of which discovery was sought, and how and why such discovery was necessary, to wit, that the suit was brought to rescind such written transfer, made in violation of an express stipulation in the partnership agreement between *Noonan*and *Mc-Nab*; and that this was sufficient to bring the case within the rule. *Ruberryv. Binns,*5 Bosw., 685; *Stanton v. Delaware M. Ins. Co.,*2 Sandf., 662; *Case v. Banta,*9 Bosw., 595.

Cole, J.

The question as to the appealability of this order has already been decided, and nothing further need be said upon that point. We will therefore now proceed to consider the order on its merits.

The order in effect requires the defendants, within twenty days after the service of the same upon them, to deliver to the attorney of the plaintiff a sworn copy of the written contract or contracts by which the defendant *McNab*sold and transferred to his co-defendant the whole or any part of his interest in the partnership property of the late-firm of Noonan and McNab, or by which *Orton*acquired an interest therein; and also a sworn copy of all and any writings in their pos *602session or under tbeir control, wbicb are evidence of or relate to sucb contracts of sale.

It is claimed by tbe defendants that tbe application for tbis order was defective in form and substance, and tbat it never should bave been granted on tbe papers presented to tbe county court. Tbe form of tbe application might perhaps be held a sufficient compliance with tbe rules of court upon tbe subject, providing tbe affidavits upon wbicb tbe order was granted bad stated “tbe facts and circumstances ” wbicb showed tbat a discovery of tbe contracts was necessary to enable tbe plaintiff to frame bis complaint. But it appears to us tbat tbe affidavits fail to show that sucb discovery is necessary.

Tbe action is brought to rescind a sale and transfer by *McNab*to *Orton*of tbe former’s interest in tbe copartnership property of tbe firm of Noonan & McNab, or some part thereof, wbicb sale has been made in violation of a stipulation or agreement in tbe articles of copartnership. The plaintiff, in bis affidavit, states tbat be is informed and believes tbat tbis contract of sale is in writing, and contains tbe evidence of sucb sale and transfer, and tbat it also contains evidence relating to tbe merits of tbe action, and tbat sucb contract is in tbe possession or under tbe control of tbe defendants, or one of them. Further, tbat tbe written contract, of wbicb discovery is sought, is not in bis possession or under bis control, and tbat be is advised by bis counsel Jason Downer, and verily believes, tbat tbe discovery of tbe written transfer and sale, and of all contracts or writings relating to tbe same, is necessary to enable him to draw tbe complaint in tbe action; and be therefore asks tbat an inspection and copy of tbe written transfer and sale may be given him. Tbe affidavit of Judge Downer contains substantially tbe same matters, and tbe further statement, tbat, being informed tbat tbe written contract was in tbe possession of A. R. R. Butler, of tbe firm of Butler & Winkler, who are attorneys of *McNab*in tbe action, be applied to Mr. Butler to see tbe same, wbicb tbe latter declined letting him see. Tbis is tbe substance of tbe affidavits.

*603Tbe proceeding is under rules 5, 6 and. 7 of tbe present rules of tbe circuit court, and rules 54 and 55 of tbe circuit court rules of 1854. These rules prescribe tbe manner in wbicb an application shall be made by tbe plaintiff to compel tbe discovery of books, papers or documents in tbe possession or under tbe control of tbe defendant, wbicb may be necessary to enable bim to frame bis complaint. He must make bis application by *'petition*for such discovery, wbicb petition shall state tbe *fads and circumstances*on wbicb tbe same is claimed, and shall be verified by affidavit stating that tbe books, papers and documents whereof discovery is sought, are not in tbe possession nor under tbe control of tbe party applying therefor, and that be is advised by bis counsel and verily believes, that tbe discovery of tbe books, papers or documents mentioned in tbe petition is necessary to enable bim to draw bis complaint. Eule 55, Eules of 1854 ; and Eule 6, Eules of 1857.

We have attached no importance to tbe fact that tbe application in this case was founded upon affidavits rather than by a formal petition. But it appears to us that tbe affidavits are insufficient because they do not state tbe *facts and circumstances*wbicb show that it is material and necessary that tbe plaintiff should have a discovery in order to frame bis complaint. As already observed, this action is brought to rescind a contract of sale of an interest in copartnership property, made by tbe defendant *McNab*to bis co-defendant, for tbe reason that this sale was made in violation of a stipulation in tbe articles of co-partnership. If tbe plaintiff is entitled to have that sale set aside, is it not quite immaterial to him what its terms and conditions are? He claims that be is entitled to-have tbe sale set aside in any event. That is tbe relief be seeks. Why, then, is it necessary that be should have an inspection and discovery of this contract in order to prove bis complaint? We certainly fail to see why or bow it is necessary that be should have it. It is true, tbe plaintiff states in bis affidavit that be has been advised by bis counsel and verily believes such discovery is *604necessary to enable bim to frame Ms complaint. But no facts or circumstances are set forth, from wMch the court can see that a discovery is material or essential. As we understand the rules, a general statement that the matters as to wMch a discovery is sought, are material or necessary, is not sufficient. It is requisite to state the facts, in order that the court may see “ why or how it is necessary to have the discovery asked in in order to prepare the ” complaint. The plain language of the rules is, that the application or petition “ *shall state the facts and circumstance on which*” the discovery is claimed; and this was doubtless for the purpose of enabling the court to see that the plaintiff could not prepare Ms complaint without the aid of such discovery. We are of the opimon that the order should not have been granted on the application

*By the Court.*— The order of the county court is reversed, and the cause remanded for further proceedings.