#### H. CHESSON et al. v. THE WASHINGTON COUNTY BANK et al.

(Filed 30 September, 1925.)

t. Evidence — Discovery—Pleadings—Statutes.

To obtain an order for tbe examination of defendant to discover necessary information to file bis complaint under tbe provisions of C. S., 900 *et seq.,*it is necessary for tbe plaintiff to show under oatb that in good faitb tbe information sought is not otherwise available to him, • and its *188necessity in sucñ detail as will enable tbe court to pass thereon, and when an appeal from the refusal of the order, this has not been done, the decision of the lower court will not be disturbed.

2. Appeal and Error — Record—Case on Appeal — Variance.

Where the record does not state the truth in regard to an appeal, the appellant should move the trial court to have it corrected, and where there is a variance between the record proper and the case on appeal as to an exception claimed to have been taken, the former will control.

Appeal by defendants from *Cranmer, J.,-*at Chambers in Tarboro, 1 April, 1925. From WashingtoN.

Civil action pending in tbe Superior Court of Washington County.

The plaintiffs, desiring to elicit certain information upon which to draft their complaint, notified the defendants that they would move before the judge of the Superior Court, holding the courts of the Second Judicial District, at Tarboro on 1 April, 1925, for an order directing the defendants to appear before a commissioner and submit themselves to examination at the hands of the plaintiffs for the purpose of giving the plaintiffs an opportunity to procure information to frame their complaint. Upon this notice and application, the judge granted the motion, except as to the Branch Banking & Trust Company, receiver of the United Commercial Bank, to which order the other defendants then and there excepted, noted their exception of record, and from which order .they subsequently appealed.

*W. L. Whitley for plaintiffs.*

*P. W. McMullan, Zeb. Vance Norman and Ward & Grimes for defendants.*

Stacy, C. J.

The order of examination, from which the defendants appeal, was entered on motion in the cause, made by plaintiffs under authority of C. S., 900 *et'seq.,*to procure information for the drafting of their complaint.

According to the decisions, dealing directly with the subject, it has been held that, after the commencement of an action, a preliminary examination of the defendant may be had by the plaintiff, (1) before filing complaint, if it be made to appear that such is necessary to enable the plaintiff to draft his complaint *(Holt v. Warehouse Co.,*116 N. C., 480) ; and (2) after pleadings have been filed, the plaintiff may cause the defendant to be examined, tO' the end that he may procure evidence for the trial. *Vann v. Lawrence,*111 N. C., 32.

Likewise, the defendant may have the plaintiff examined (1) before filing answer, if it be made to appear that such is necessary to enable the defendant to draft his answer, especially if an affirmative defense *189or counterclaim is to be set up; and (2) after pleadings have been filed, tbe defendant may cause tbe plaintiff to be examined, to tbe end tbat be may procure evidence for tbe trial. *Jones v. Guano Co.,*180 N. C., 319.

Speaking to tbe second or latter right, as affecting botb parties, *Avery, J.,*in *Helms v. Green,*105 N. C., p. 262, said: “When tbe pleadings are complete, other material facts may be elicited from an adversary by examination in support of tbe main action or tbe cross-action set up in tbe counterclaim, if tbe disclosures by way of admissions are not deemed sufficiently full. A party who puts bis adversary on tbe stand gives him an opportunity to testify in bis own behalf on cross-examination, and waives bis right of impeaching him by attacking bis credibility, but retains tbe privilege of contradicting him by testimony of other witnesses inconsistent with bis.”

But in tbe instant case, plaintiffs are seeking to elicit, by examination of tbe defendants, information to enable them to draft their complaint. No affidavit appears in tbe record on which tbe motion for order of examination was made, and it is tbe approved position with us tbat such a motion should be based upon an affidavit stating tbe facts which entitle tbe plaintiffs to tbe order. Speaking directly to tbe question in *Bailey v. Matthews,*156 N. C., p. 81, *Walker, J.,*said:

> “In a proceeding of this kind, it is of tbe first importance tbat tbe application for an order of examination should be under oath, stating facts which will show tbe nature of tbe cause of action, so tbat tbe relevancy of tbe testimony may be seen and tbe Court may otherwise act intelligently in tbe matter, and it should appear in some way, or upon tbe facts alleged, tbat it is material and necessary tbat tbe examination should be bad and tbat tbe information desired is not already accessible to tbe applicant. It should also appear tbat tbe motion is made honestly and in good faith and not maliciously — in other words, tbat it is meritorious. 8 Enc. of PI. and Pr., p. 41 *et seq.*Surely, a clerk or judge is not bound to grant such an order if it appears to be unnecessary, or if tbe evidence sought to be elicited is immaterial, or tbe application appears to be made in bad faith. It is but just and right tbat tbe application should be made under tbe obligation and responsibility of an oath to protect tbe respondent against false and malicious accusations and vexatious proceedings. Tbe law will not permit a party to spread a dragnet for bis adversary in tbe suit, in order to gather facts upon which be may be sued, nor will it countenance any attempt, under tbe guise of a fair examination, to harass or oppress bis opponent. It is a very rare case tbat requires tbe exercise of this function of tbe court, and tbe order should not be made without careful consideration and scrutiny.”

*190To like effect are tbe holdings in *Fields v. Coleman,*160 N. C., 14; *Jones v. Guano Co.,*180 N. C., 319, and *Monroe v. Holder,*182 N. C., 79.

Tbe judge certifies, however, in response to a *certiorari,*issued at tbe instance of tbe plaintiffs, that, as be understood tbe order, it was entered by consent, though be allowed an exception to be noted at tbe time. -This, it will be observed, is at variance with tbe record as it appears on tbe minutes of tbe Superior Court and as certified to this Court. Under such conditions, it is tbe uniform bolding with us that tbe record proper must govern. *S. v. Wheeler,*185 N. C., 670; *Moore v. Moore, ibid.,*332. Tbe judgment is a part of tbe record proper. *Thornton v. Brady,*100 N. C., 38. Tbe plaintiffs were remiss in allowing tbe record to show an excepted order, when it was entered by consent, and they should have lodged a motion before tbe judge to have tbe judgment, as recorded, speak tbe truth. Having neglected to do this, we must dispose of tbe appeal on tbe record as it stands below and as certified to this Court. *Bartholomew v. Parrish, ante,*151.

Tbe order, as we are compelled to deal with it, appears to have been improvidently granted, under tbe authorities .above cited, and it is accordingly

Reversed.