Joseph P. Hurley, Wilmington, and Kenneth G. Speir of Speir, Stroberg & Sizemore, Newton, Kan., for relators.
Aaron Finger of Richards, Layton & Finger, Wilmington, and Norman T. Hayes, Jr., of Morgan, Lewis & Bockius, Philadelphia, Pa., for respondents.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
SOUTHERLAND, Chief Justice.
The suit in the court below concerns a claim of plaintiffs (relators here) to be reimbursed for water claimed to have been withdrawn from and under their lands.
Plaintiffs sought discovery from the defendants. (1) They asked for the production of certain documents; and (2) they took the deposition of the president of one of the defendants. The defendants objected to producing the documents, and, in the course of the deposition, [39 Del.Ch. 24] also objected to certain questions put to the witness, who refused to answer them on advice of counsel.
The Vice Chancellor sustained the defendants on both points. He ruled that the documents sought and the questions objected to were improper. The reason for his ruling was this:
In his view plaintiffs' case consists of (1) a claim of interest in the water that is the subject matter of the suit, and (2) a right to an accounting for its value if that interest is established. The documents sought, and the questions put to the witness, pertained to the accounting issue only. Hence, in his opinion, the discovery sought was premature. See Terry v. Stull,20 Del.Ch. 39, 46, 169 A. 739.
Plaintiffs, conceding that this decision is a nonappealable interlocutory ruling, seek a review thereof by way of a petition for a writ of mandamus. Defendants (in addition to other defenses) move to dismiss.
We do not reach the question of the correctness of the Vice Chancellor's ruling, because we are of opinion that the defendants' motion must be granted. Mandamus is not a proper remedy to control or reverse judicial action in a case in which the matter is interlocutory and can be subsequently reviewed on appeal. See Adair v. Pennewill,34 Del. 390, 153 A. 859; National Bondholders
Corporation v. McClintic, 4 Cir.,
99 F.2d 595, 598; Pennsylvania Railroad Co. v. Kirkpatrick, 3 Cir.,203 F.2d ...