Ellinger v. Equitable Life Assurance Society, 125 Wis. 643.

The statute declares:

"The court before which an action is pending, or a judge thereof, may, in discretion and upon due notice, order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy of any books, papers and documents in his possession or under his control containing evidence relating to the merits of the action or of the defense therein." Sec. 4183, Stats. 1898.

One of the circuit court rules provides that such application may be made "by either party to compel the other to give him inspection and a copy or permission to take a copy of any books, papers, or documents in his possession or under his control which may be necessary to enable the applicant to frame his complaint, answer, or reply, as the case may be, or which shall be material to any application made by him for any provisional remedy." Subd. 1, sec. 1, Circuit Court Rule XIX. Sec. 2 of the same rule prescribes what the petition or affidavit must contain when the application is necessary to enable the party "to frame his complaint, answer, or reply, or to obtain some provisional remedy, or to prepare for trial, as the case may be." True, the same rule provides that "the order to show cause on such application, as well as the order absolute made upon showing cause, . . . shall operate as a stay of all other proceedings in the action of the party against whom it is made, until such order shall have been complied with, vacated, or reversed." Sec. 5, Id. But such stay of "proceedings in the action" does not operate to bar such party from resisting the application to compel such inspection of such books and papers or the furnishing of sworn copies thereof. Otherwise the proceedings to compel such inspection and copies would be ex parte and the statutory requirement of giving notice to the opposite party would be without significance. The statutes divide remedies into "actions" and "special proceedings." Sec. 2594, Stats. 1898. After defining an action the statute declares that "every other

Ellinger v. Equitable Life Assurance Society, 125 Wis. 643.

remedy is a special proceeding." Secs. 2595, 2596, Stats. 1898.

It

The plaintiff contends that the order appealed from is not appealable. The defendant claims that it is appealable either as "a final order affecting a substantial right made in special proceedings," or as "an order" that "refuses. . . a provisional remedy." Subds. 2, 3, sec. 3069, Stats. 1898. was held by this court many years ago that "the remedy formerly procured by an ancillary suit in equity for a discovery is now granted by an order in the principal cause," and that "such an order" was "a provisional remedy," and was therefore "appealable." Noonan v. Orton, 28 Wis. 386. Subsequently it was held by this court that "an order requiring a party to an action to submit to an examination as a witness for the opposite party, being a substitute for a bill of discovery," was "a provisional remedy," and therefore was "appealable." Blossom v. Ludington, 31 Wis. 283. Mr. Justice LYON wrote the opinion of the court in both of those cases. In commenting upon the first of these cases, soon after, DIXON, C. J., speaking for himself, stated "that the remedy for a discovery is properly called a special proceeding, and so defined by the statute." Witter v. Lyon, 34 Wis. 564, 574. In Prince v. McCarthy, 61 Wis. 3, 20 N. W. 655, it was held that the term "special proceedings," as used in subd. 2, sec. 3069, Stats. 1898, is to have the same meaning as defined in secs. 2593-2596. This must necessarily be correct. In re Guardianship of Welch, 108 Wis. 387, 393, 84 N. W. 550; State ex rel. Att'y Gen. v. Frost, 113 Wis. 623, 641, 88 N. W. 912, 89 N. W. 915; Deuster v. Zillmer, 119 Wis. 402, 407, 408, 97 N. W. 31; State ex rel. Risch v. Trustees, 121 Wis. 44, 59, 98 N. W. 954; Harrigan v. Gilchrist, 121 Wis. 127, 277, 99 N. W. 909. But, as the order in Prince v. McCarthy, supra, was made by the circuit judge at chambers, and not by the court, it was held not to be appealable. The opinion in that case was also written by Mr. Justice LYON.

Ellinger v. Equitable Life Assurance Society, 125 Wis. 643.

In Nichols v. McGeoch, 78 Wis. 360, 47 N. W. 372, an order of the court refusing the defendant's application for the production of books was reversed on appeal. To the same effect: State v. Baetz, 86 Wis. 29, 56 N. W. 329; Schmidt v. Menasha W. W. Co. 92 Wis. 529, 66 N. W. 659. In Minnesota it was held that a statute "providing for the examination of an adverse party as if under cross-examination" applies "to any proceeding involving such an issue which the parties, as a matter of right, are entitled to have heard on oral testimony." Strom v. Montana Cent. R. Co. 81 Minn. 346, 84 N. W. 46. In view of the authorities cited we are constrained to hold that the proceedings instituted by the plaintiff to compel the inspection of books and papers were a provisional remedy as defined by this court in the cases cited. It has been said that "a provisional remedy is a collateral proceeding permitted only in connection with a regular action and as one of its incidents." 6 Words & Phrases, 5752; Snavely v. Abbott B. Co. 36 Kan. 106, 12 Pac. 522. The language of sec. 4096 is broad, and authorizes the examination of the adverse party "otherwise than as a witness on a trial. . . in any action or proceeding, at any time after the commencement thereof and before judgment." The application for the inspection of books and papers was certainly a "proceeding," and, since the order appealed from refuses a provisional remedy, we must hold that it is appealable under the third subdivision of sec. 3069 of the Statutes.

By the Court. The order of the circuit court is reversed, and the cause is remanded for further proceedings according to this opinion.

Means v. State, 125 Wis. 650.

MEANS, Plaintiff in error, vs. THE STATE, Defendant in

error.

September 15-October 3, 1905.

Criminal law and practice: Sodomy: Evidence: Accomplice.

1. In a criminal prosecution for the offense of sodomy, the evidence, stated in the opinion, is held sufficient to warrant conviction. 2. A conviction of a criminal offense may be sustained on the uncorroborated testimony of an accomplice.

3. A child seven years old is not capable of a legal consent, and hence cannot be an accomplice in committing the offense of sodomy.

ERROR to review a judgment of the municipal court of Milwaukee county: A. C. BRAZEE, Judge. Affirmed.

Henry E. Bradley, for the plaintiff in error.

For the defendant in error the cause was submitted on the brief of the Attorney General and A. C. Titus and Walter D. Corrigan, assistant attorneys general.

WINSLOW, J. The plaintiff in error was convicted of a crime against nature under sec. 4591, Stats. 1898, committed by inducing a boy seven years of age to insert his male organ in the mouth of the plaintiff in error. Upon writ of error he claims that as the boy was incapable of penetration in the sense in which that word is used in rape, and incapable of emission, there was no crime under sec. 4591, but only an indecent assault under sec. 4591a, Stats. 1898.

We are unwilling to soil the pages of our Reports with lengthened discussion of the loathsome subject. There is sufficient authority to sustain a conviction in such a case, and, if there were none, we would feel no hesitancy in placing an authority upon the books. Reg. v. Allen, 1 Den. C. C. 364; Kelly v. People, 192 Ill. 119, 61 N. E. 425.

It is said that the boy was an accomplice, and that no con

Theis v. Durr, 125 Wis. 651.

viction can be sustained upon his uncorroborated evidence. Such is not the law in this state. It is in the discretion of the trial court whether to direct an acquittal or not. Black v. State, 59 Wis. 471, 18 N. W. 457; Porath v. State, 90 Wis. 527, 63 N. W. 1061. Moreover, an accomplice is one who consents, and a boy of such tender years is not capable of legal consent, and hence is not an accomplice. Kelly v. People, supra; Mascolo v. Montesanto, 61 Conn. 50, 23 Atl. 714. By the Court.-Judgment affirmed.

THEIS and others, Respondents, vs. DURR and others, imp., Appellants.

October 3-October 24, 1905.

Corporations: Powers: Stockholders: Liability for subscriptions to stock: Satisfaction: Capital stock: Reduction: Courts: Equity jurisdiction: Ultra vires: Procedure: Judgments.

1. The liability to pay a subscription indebtedness for stock in a corporation can only be rightfully satisfied by payment according to the subscription contract.

2. Reduction of authorized and subscribed for capital stock cannot be accomplished except by voluntary surrender by subscribers pro rata, or some method which will not prefer one stockholder over another.

3. Corporate power in regard to reduction of authorized and subscribed for capital stock does not authorize an arbitrary cancellation of stock, or cancellation of a subscription liability for stock, without in some proper manner treating all stockholders with like favor.

4. A court of equity cannot supervise or revise corporate action within the scope of the corporate power where there is no bad faith in the matter; only error of judgment.

5. In such matters the members of the corporation, as to authority lodged with them, and the board of directors in the field where that is the governing body, are supreme within the limits of honest administration and of the boundaries of discretion.