On petition for vacation of order allowing writ of subpoena.
For the petitioner, E.I. DuPont de Nemours & Company, Incorporated, Hicks, Kuhlthau, Thompson & Molineux (Douglas M. Hicks, of counsel).
For the respondent, Universal Moulded Products Corporation, R. E. & A. D. Watson (A. Dudley Watson, of counsel).
[137 NJL Page 589] BURLING, J. This is an application made by E.I. DuPont de Nemours & Company, Incorporated, to set aside a certain order of this court dated July 7th, 1948, which ex parte order was made by Mr. Justice Bodine directing the issuance of subpoenas to G. E. Conde and C. J. Welz. The summer schedule of this court for reception of motions was in effect and a petition was presented to and a rule to show cause why this order should not be set aside was allowed by Mr. Justice Donges and made returnable and argued before me on August
19th, 1948. The pertinent facts as they appear from affidavits and counter-affidavits are as follows:
The Universal Moulded Products Corporation, a Delaware corporation, commenced a civil action in the Corporation Court for the City of Bristol, Virginia, against E.I. DuPont de Nemours and Company. The defendant filed a plea of general issue. Under Virginia procedure, the action was at issue as the defendant had pleaded the general issue. Big Sandy & Cumberland Railroad Co. v. Ball, 133 Va. 431; 113 S.E. Rep. 722; O.L. Standard Dry Goods Co. v. Hale, 148 Va. 640; 139 S.E. Rep. 300. The plaintiff in that action filed a petition under the New Jersey statute (R.S. 2:100-36) to obtain the process of subpoena directed to Conde and Welz, two employees of defendant who are residents of this state. The petition alleged the pendency of the action in the Virginia court; service of notice on defendant on June 30th, 1948, of the intention to take the depositions of G. E. Conde and C. J. Welz (residents of the State of New Jersey) before William D. Danberry, a counsellor-at-law of the State of New Jersey, at his office, Citizens Building, 46 Bayard Street, New Brunswick, New Jersey, on July 16th, 1948, and that the testimony of the said employees was material and prayed for the issuance of subpoenas to be used in said action.
The subpoenas are addressed to G. E. Conde and C. J. Welz. At common law a legal name consisted of a given and of a surname or family name. Actions are properly so commenced and prosecuted. Schaffer, Trustee v. Levenson Co. (Supreme Court, 1911), 82 N.J.L. 61. There seems to be no question of the identity of the persons whose testimony is desired to be taken and no point is made of this fact.
The statute under which the order was made reads as follows:
R.S. 2:100-36. "Whenever notice is given or other proceedings are taken for the purpose of examining or taking the deposition of any witness or witnesses within this state, pursuant to the laws of the United States or the laws of any state of the United States, other than this state, or of any foreign country, to be used in any civil action or proceeding pending in any court of the United States, or in any court
of any state of the United States other than this state, or of any foreign country, any justice of the supreme court of this state may, upon application made to him, with proof by affidavit that the testimony of such witness or witnesses is material to the applicant, make an order awarding process of subpoena out of the supreme court of this state, for such witness or witnesses to appear and testify in pursuance of such notice or other proceeding, and before such commissioner or person as shall be named in such order. Source: L. 1900 c. 150, § 60, p. 380 (C.S. p. 2238, § 60) as am. by L. 1914, c. 98, § 2, p. 154 (1924 Suppl. § 70-60)."
Surprisingly enough, although this statute has been on the books since 1900 it has never been the subject of judicial interpretation. In the revision of 1937 it forms a part of title 2, article 7, chapter 100 (R.S. 2:100-35 to 2:100-37) relating to testimony of witnesses for use in a foreign jurisdiction. The first section R.S. 2:100-35 relates to the practice of execution of a commission out of a court of another jurisdiction and has no significance in this application.
The statute is plain and its import is obvious. It is to facilitate the obtaining of testimony for use in other jurisdictions and is, in a sense, complementary of other sections of our statute, which relate to obtaining testimony in other states for use in our courts, for example, R.S. 2:10-26. However, it is not related to those sections either ...