of it, is within the exclusive knowledge or possession of the adverse party. That is apparent from the concluding sentence of the part quoted: "and such facts, papers, books or documents, being disclosed or produced, may be given in evidence by the party filing such motion." This statute is a substitute for sections 1060 and 1061 of the General Statutes. In those sections the party was at liberty to call for such disclosures only "as a court of equity might order on the grounds in such motion stated; and such facts and papers, being disclosed or produced, may be given in evidence by the party filing such motion." In this connection it may be interesting briefly to notice the limitation of the jurisdiction of a court of equity in such matters.1 . . .

"The fundamental rule on this subject is, that the plaintiff's right to a discovery does not extend to all facts which may be material to the issue, but is confined to facts which are material to his own title or cause of action. It does not enable him to pry into the defendant's case, or find out the evidence by which that case will be supported. The plaintiff is entitled to a disclosure of the defendant's title, and to know what his defense is, but not to a statement of the evidence upon which the defendant relies to establish it." Pomeroy's Eq. Jur., § 201, and cases cited.

The statute was not designed to enlarge the scope of an equitable principle, but simply to enable a court of law, in administering legal remedies, to exercise a clearly defined power of a court of equity. For these reasons the court did not err in sustaining the demurrer, and denying the motion for a disclosure.2 . . .

There is no error in the judgment appealed from.

In this opinion the other judges.concurred.3

IN RE BERGER.

COURT OF APPEALS, OHIO, FIFTH DISTRICT. 1919.

13 Ohio Appeals 206.

SHIELDS, J. The following facts appear of record:

On February 13, 1919, one Louis Frietchen commenced an action in the court of common pleas of Richland county against John Berger, Delilah Berger and Della M. Berger, for damages growing out of the alleged negligent, careless and unlawful operation of an

1 Quotations from 2 Story, Equity Jurisprudence (10th ed. 1870) §§ 1483, 1485, 1490, are omitted.

2 The remainder of the opinion, dealing with alleged errors at the trial, is omitted.

3 See Ragland, Discovery before Trial (1932) 120-145. Compare the discussion in Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 38-40.

automobile upon certain streets in the city of Mansfield, in said county, on September 25, 1918, whereby said Louis Frietchen was struck and thrown violently to the street and permanently injured, as is more particularly described in his petition.

On February 26, 1919, after service of summons was made upon defendants in said action, the plaintiff's attorneys caused subpoenas to issue for the defendants Delilah Berger and Della M. Berger, commanding them to be and appear before one Wm. F. Black, a notary public in and for Richland county, on the 28th day of February, 1919, at the law office of the plaintiff's attorneys in the city of Mansfield, in said county, to be examined as witnesses as on cross-examination, in behalf of the plaintiff in said action; that pursuant to such process issued, above named defendants duly appeared at the time and place stated, when the said "Delilah Berger being duly sworn was introduced as a witness as upon cross-examination," who, after making answers to the usual preliminary questions as to her residence and occupation, was interrogated as to the accident occurring at the intersection of the streets mentioned, at the place mentioned, as stated in the petition, when she refused to answer.1

...

It appears that the sole question presented upon the record is the legal question of the right of plaintiff below to take the testimony by deposition, in advance of a trial of Delilah Berger, a party defendant to said action and served with process, and to have said Delilah Berger true answers make before a notary public to all proper inquiries made of her, as upon cross-examination, in behalf of said plaintiff, touching the accident upon which said action is based.

The chancery practice of filing what was known as an equity bill for discovery appears to have been superseded by statutory legislation and as a substitute therefor Section 11497, General Code, was enacted by the legislature, which provides:

"At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. If the party be a corporation, any or all the officers thereof may be so examined at the instance of the adverse party. The party calling for such examination shall not thereby be concluded but may rebut it by counter testimony."

In addition to the foregoing, interrogatories are authorized to be

1 The details of the proceeding before the notary, including the text of an affidavit of Delilah Berger in which she stated that she refused to answer because the deposition was being taken "solely . . . to discover the manner in which defendants' defense. . . is to be established, and to compel the defendants... to disclose in advance before trial their evidence which relates exclusively to said defendants' defense", is omitted. The notary public adjudged Delilah Berger in contempt for refusing to answer. She was discharged on habeas corpus by the court of common pleas of Richard county, whereupon a petition in error to reverse the judgment of the court was filed by the plaintiff in the original suit.

annexed to a pleading under Section 11348, General Code. Under the same Chapter (3), relating to evidence, Section 11525, General Code, provides:

"The deposition of a witness may be used only when it is made to appear to the satisfaction of the court that he does not reside in, or is absent from, the county where the action or proceeding is pending, or, by change of venue, is set for trial; or that he is dead, or, from age, infirmity, or imprisonment, is unable to attend court; or that the testimony is required upon a motion, or where the oral examination of the witness is not required."

It will thus be seen that the first of the statutes cited provides for an examination of a party to, an action by deposition, while by the last statute cited it is provided when the deposition of a witness may be used. One authorizes the taking without any restrictions, and the other the use subject to certain conditions. Here we have to deal with the first proposition only. As was said by Judge Davis in announcing the opinion in In re Rauh et al., 65 Ohio St., 128, 135:

"The right to take depositions should be carefully distinguished from the right to use them."

The question at issue here involves the right to take the deposition of the said Delilah Berger, and not the use of the depositions when taken. The law designates different officers before whom depositions may be taken, among them a notary public, whose powers are not judicial, and therefore a notary public is not authorized to pass upon and determine the materiality or competency of testimony offered, but his duty is to reduce such testimony to writing and transmit it to the court wherein such action is pending.1

...

An examination of the record herein shows that after the witness appeared before the notary public for examination, pursuant to the command of the subpoena served on her, and after she was sworn to testify, her counsel objected to the taking of her testimony "for the reason that the object of the deposition is to discover defendants' testimony," which objection was overruled. Then followed the interrogatories and answers as appear in said deposition, when said objection was repeated and overruled, after said affidavit was filed. Hence it appears that the sole objection to the taking of said deposition was based on the ground that it was "to discover defendants' testimony." If it were a matter upon which we were required to speak, we would unhesitatingly record our dissent from the wisdom of the statute referred to, for reasons not necessary here to state, but it is sufficient to say that the individual opinion of courts can not be substituted for the legislative will when enacted into law, and it is the duty of courts to announce the law as written into our statute books. The question made here is not one of professional ethics, but

1 A quotation from DeCamp v. Archibald, 50 Ohio St. 618 (1893), is omitted.

of a statutory law a statute requiring enforcement as interpreted by the highest court of this state.1

the judgment of the court of common pleas in discharging Delilah Berger from custody in the habeas corpus proceeding must be reversed, and it is so ordered.

HOUCK and PATTERSON, JJ., concur.2

Judgment reversed.

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 26. DEPOSITIONS PENDING ACTION.

(a) When Depositions May Be Taken. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken at the instance of any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.3

(b) Scope of Examination. Unless otherwise ordered by the court as provided by Rule 30 (b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible

1 A detailed discussion of the Ohio precedents is omitted.

2 Affirmed "on the authority of In Re Rauh, 65 Ohio St. 128," sub nom. Ex parte Berger, 101 Ohio St. 512 (1920).

See, on discovery under modern procedure generally, an excellent Note, 44 Harv. L. Rev. 633 (1931). See also James, "Discovery," 38 Yale L. J. 746 (1929). As to discovery before trial in other systems of law, see Millar, "The Mechanism of Fact-Discovery: A Study in Comparative Civil Procedure," 32 Ill. L. Rev. 261, 424 (1937).

3 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 32, proposes to substitute for the preceding sentence of Rule 26(a) the following: "Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. A deposition may be taken after commencement of the action and without leave of court, except that if notice of the taking is served within 20 days after such commencement leave of court granted with or without notice must first be obtained."

4 The remainder of Rule 26(a) provides for subpoenas to witnesses and for the, examination of persons in prison only by leave of court.

things and the identity and location of persons having knowledge of relevant facts.1

(c) Examination and Cross-Examination. Cross-Examination. Examination and cross-examination of deponents may proceed as permitted at the trial under the provisions of Rule 43 (b).2

(d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the de-. position or who had due notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose.3

SIMPSON, "A POSSIBLE SOLUTION OF THE PLEADING PROBLEM". 53 Harvard Law Review 169, 192–195 (1939).5

THE earlier codes made no provision for any court-controlled procedure for ascertaining the questions actually at issue in any case. Under the orthodox code practice, the pleadings "do not serve to define the issues to be tried; rarely do they do more than set the limits beyond which the trial may not travel." Nor do procedures

1 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 33, proposes to add the following sentence at the end of Rule 26(b): “It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence."

2 Rule 43(b) relates to the scope of examination and cross-examination at the trial, and covers matters dealt with in the course on Evidence.

3 The remainder of Rule 26 relates to the use of depositions by witnesses, to objections to the admissibility of evidence, and to the effect of taking or using a deposition. As to interrogatories to parties, see Rule 33.

See also Rule 27 (depositions before action or pending appeal); Rule 30 (depositions on oral examination); Rule 34 (discovery and production of documents, etc., for inspection, copying, etc.); and Rule 36 (admission of facts and documents). As to pending changes in these rules, see Second Preliminary Draft of Proposed Amendments, supra, 31-48.

* See Holtzoff, "Instruments of Discovery under Federal Rules of Civil Procedure," 41 Mich L. Rev. 205 (1942).

5 Footnotes are from the original article unless otherwise indicated.

6 Morgan, Book Review (1933) 46 Harv. L. Rev. 1350.