Cornell v. Fryer

Headnote

Examination of Party before Trial.—Affidavit.

Where affidavits, on which an order for the examination of a party plaintiff before trial was obtained, stated that his testimony was material and necessary to defendant for the purpose of framing his answer, and for his defense, for the reason that it was necessary to show by him that the action was not brought in good faith; that his allegations of fraud and conspiracy were not true nor believed to be true, nor were they made by the plaintiff, but were only the effect of adroit special pleading; and further, that certain other facts stated were peculiarly within the knowledge of the plaintiff, without knowledge of which the defendant could not prepare a proper answer, nor safely prepare for nor proceed to trial,—Held, that the affidavits were sufficient to sustain the order.

Motion by plaintiff to set aside an order for the examination of parties plaintiff before trial.

This action was brought by John B. Cornell and others against William J. Fryer and others.

The complaint was for an injunction and damages for manufacturing in territory where plaintiffs claimed an exclusive license, and alleged fraud and conspiracy on part of defendants in reviving alleged forfeited licenses..

The defendant had not answered.

His affidavit, upon which the order for examination of the plaintiffs was based, stated that their testimony was material and necessary to defendant, “before trial, for the purpose of framing his answer, and for his defense herein, for the reason that it is necessary to show by them that this action, brought against this defendant, is not brought in good faith ; and that the allegations of fraud and conspiracy are not true, nor believed to be true, nor are they made by the said plaintiffs; but the same are only the effect of adroit special pleading on the part of the pleader who drew the complaint; and for the further reason that the allegations, in the complaint, as to damages claimed from the defendant, Fryer, and the claim for an injunction, and the exception of said defendant, Fryer, from the operation of the agreement claimed by plaintiffs with the Hyatts, by reason of said Fryer’s prior license, and of the amount of license fees actually paid by the plaintiffs, and of the settlement of the alleged prior action and injunction of the plaintiffs against the Hyatts, are peculiarly within the knowledge of said plaintiffs, and without knowledge of which facts this defendant cannot prepare a proper answer herein, nor safely proceed to, nor properly prepare for, trial.”