State ex rel. Burke v. Citizens' Bank

On Application por Rutteartng. Blanchard, J. The court a qua granted the plaintiff’s prayer for *433 an expert to assist her in the examination she desired to make of the books of the bank, which, under the law, she has the right ifc inspect. The plaintiff had asked for the appointment of a particular person, named by her, as such expert. The defendant bank, while resisting the demand for an inspection-of its books as herein sought, asked that, in the event the inspections was granted, and the court thought it a proper case for the appointment of an expert to assist plaintiff in the examination, the persons named by plaintiff be not appointed because he was inimical to the-bank, and that some other disinterested and unprejudiced person be' named as such expert. The court declined to name the party suggested by plaintiff and appointed as expert W. H. Simmons. The costs of mandamus proceeding were rightly adjudged against, defendant bank, but we do not think any part of the compensation, which will be due the expert should have been charged against the-bank. The judgment below directs that such compensation be paid jointly' by plaintiff and defendant. As this expense cannot be reckoned any part of the costs of this’ litigation, and as the examination is a matter desired by plaintiff' alone, and for her benefit alone, the compensation of the expert should be borne by her alone. In this respect the judgment appealed from is erroneous, and it becomes necessary to correct the same. It is, therefore; ordered that the former decree of this court, hereinbefore handed down, be set aside, and it is now adjudged and decreed that the judgment appealed from be so amended as to strike-therefrom the award against defendant of any part of the compensation which will become due the expert appointed to assist plaintiff in her examination of the books of the bank, and it is directed that such expense be borne by plaintiff alone; and that as thus' amended, the judgment of the court a qua be affirmed, costs of the lower court to be taxed against defendant, those of appeal against plaintiff and ap-pellee. Rehearing denied.