Russell v. Dickeschied

Woods, Judge:

The only object of this bill was to obtain from the defendant a discovery of the specific facts referred to in the eight several interrogatories set forth in the bill. These facts are alleged by the plaintiff to be material for him in order to maintain his side of the said issue, and it is evident upon the reading of these interrogatories, founded as they are upon affirmative allegations of the bill, that if answered affirmatively, the answers would tend to show, that the said coin, at the time of his death was the property of the deceased, and therefore the property of the plaintiff.

There was no relief asked 'for, except that the defendant be enjoined from proceeding further in the trial of her action of detinue, until she answered the plaintiffs bill. It was a pure bill of discovery, to aid the plaintiff in the issue, to maintain his claim to said coin. The defendant filed no answrnr, and from the expeditious manner in which this case ■was disposed of, it was impossible to compel the defendant to answer. The bill having been filed on the 25th of May, no process thereon could have been returnable until the first Monday in June (the June rules) nor could the defendant have been in default, so as to# authorize proceedings against *67 lior for contempt in failing to answer the hill until the July rules, 1888. There was no demurrer to the bill, nor so far as this record shows, any question raised as to its sufficiency. In dissolving the temporary injunction upon motion, and before answer hied, the circuit court must therefore have treated the bill as so defective, either in form or substance, that the plaintiff was not entitled to the discovery sought, or that bills of discovery have been abolished. Much of the argument-, and many of the authorities relied on by the counsel for the appellees, have been directed to the consideration of the question whether a bill of interpleader in this case could have been maintained by the said Exchange Bank, against the said administrator and Othilie Diekeschied, and whether the circuit court, under the proceedings in the action of detinue, could rightfully compel these parties to interplead each other. Neither of these questions can properly arise upon the record of the $ause under, consideration. This Court has no authority to reverse or correct the proceedings of the circuit court, had in said action at law, even if they had been erroneous, about which we express no opinion. If the circuit court erred upon the trial of that action, to the detriment of any of the parties, the remedy for the correction of the error, is not by a bill in chancery or by any proceedings thereon. Such error, if any there be, will not be noticed in this Court, but on the contrary, we will assume that the interpleader has been properly orderethj'

Assuming this to be the fact, and that the administrator must maintain the issue on his part, or be forever barred in respect to any claim in respect to the fourteen sacks of silver coin, has he a right to maintain any bill of discovery? It is not directly asserted in argument, that bills of discovery can no longer be brought, but it is argued, that they are no longer necessary — that other-remedies have been provided by statutes which will more cheaply, and conveniently accomplish the same result, and afford the same relief, and that, since the adoption of the statutes, allowing a court of law to compel a discovery upon oath to interrogatories filed to the opposite party, and declaring the parties to suits with few exceptions competent and compellable witnesses for or against each other, they ought not to be entertained.

*68 Mr. Minor in his Institutes, vol. 4, page 1130 (margin), says, that “Bills oí discovery are with us entirely superseded in practice by two statutory provisions, one allowing a court of law to compel a discovery upon oath in answer to interrogatories filed wherever it would be compelled upon a bill oí discovery if the interrogatories have not been unreasonably delayed (Va. Code 1873, ch. 172, secs. 44 and 45,) and the other declaring parties to suits with some important qualifications to bo competent to give evidence in their own behalf, and to be competent and compellable to attend and give evidence on behalf of any other party to the- proceedings. (Va. Code 1873, ch. 172, secs. 21 and 22). But Minor does not pretend that by these statutes or either of them, bills of discovery are abolished in Virginia. Before the passage of these statutes, courts of law had no authority to compel the parties in an action at law to disclose any. facts within their knowledge for the benefit of the opposite party, and being interested in the result or the subject-matter of the action they were incompetent to testily in their own. behalf. The only means the party 1 ad under such circumstances of compelling a discovery from his adversary was by resorting to his bill of discovery in a court of chancery; and the necessity of compelling a discovery has always been recognized as one of the sources of the jurisdiction of a court oí equity whether the same was exercised for the purpose of affording complete relief at its own bar, or of aiding other courts in the exercise of ther legitimate jurisdiction.

It is a well established rule, that if originally the jurisdiction has properly attached in equity in any case on account of the supposed defect of remedy at law, that jurisdiction is not taken away by the courts of law now entertaining jurisdiction in such cases where they formerly rejected it, for being once vested legitimately in the court, it must remain there until the Legislature shall abolish or limit it. Story’s Eq. Jurisp. sec. 62i; Wayland v. Tucker, 4 Gratt. 267 . Nor is this jurisdiction to be taken away by express enactments conferring on courts of law the same jurisdiction, for unless there are prohibitory or restrictive words used, the uniform interpretetion is, that they confer concurrent and not exclusive remedial authority. Story’s Eq. Jurisp. sec 80; Redd, *69 &c., v. Supervisors, &c., 31 Gratt. 698 ; Segar v. Parrish, 20 Gratt. 680 .

The provision contained in section 39 of chapter 176 of the Code of Virginia, 1849, was repealed by the Code of "West Virginia, 1868, as the revisors doubtless supposed that it was no longer necessary, as sections 22 and 23 of chapter 130 authorized the examination of the parties to the suit, in the same manner as any other witnesses might be examined. Before either ot these statutes were adopted the party had the right to file his bill ot discovery. There were neither restrictive nor prohibitory words in either ot them, and therefore after their enactment this right still remained to him.

Neither the answers to the interrogatories, nor the answer of the defendant to the bill of discovery could be offered in evidence by him on his behalf. The party propounding the interrogatories, or filing the bill, was not obliged to offer the answers in evidence. In this manner he could sift the conscience of his adversary without peril to himself; and although he may now, if he desire to do so, compel his adversary to be examined as a witness, yet he may deem it a matter of the highest importance to learn from his answer to a bill of discovery, whether he can safely examine him as a witness. We are therefore of opinion that the statute authorizing parties to suits to be examined as witnesses has not deprived any party in a proper case of his right to resort to his bill of discovery. Was the plaintiff’s bill so defective in form or substance that he was not entitled to the discovery asked'for? The bill in this case was a pure bill of discovery, asking no relief, involving the necessity of no hearing thereof. It is true that it asked that until defendant answered the bill, she might be enjoined from further proceedings in her action of detinue; without this stay of proceedings, the discovery sought would, when obtained, be wholly fruitless. Story Eq. Pl. § 315.

The allegations of the bill showed the title of the plaintiff to the property in question; it'sliowed the discovery was to be used in a civil suit between him and the defendant; that it was material to his defence in a court of general jurisdiction; that a large amount of property was involved; that the plaintiff, in his character of administrator, had a right to sue for and recover the property if his claim thereto is well *70 founded, and if the interrogatories in the bill were answered affirmatively, they would tend to establish his right to recover the said property; and that the discovery sought does not tend to criminate the defendant or subject her to any penalty or forfeiture, nor will it involve any'degree of moral turpitude on the part of the defendant. While it is necessary in a hill of discovery to show that the discovery is material to the support of the party’s claim asking the same and the manner in which it is material, it is not necessary to aver that the discovery is absolutely necessary or indispensable for that purpose. It will he sufficient to state and show that it is material evidence. Thus for example it is not necessary to allege in the bill that the plaintiff has no other witness or evidence to establish the facts of which the discovery is sought, for he is entitled to it, if it be merely cumulative evidence of material facts. Story’s Eq. Pl. §§ 315-325; McFarland v. Hunter, 8 Leigh 492 , 493; March v. Davison, 9 Paige 580 ; Peck v. Ashley, 12 Metc. 478 ; Williams v. Wann, 8 Blackf. 477 ; Min. Inst. vol. 4 marg. p. 1130.

But it is insisted in argument by the counsel for the appellee, that inasmuch as the plaintiff’s bill prayed a. temporary injunction, it was a bill for relief, and ought therefore to have averred that the plaintiff was unable to prove the facts of which a discovery is sought by any other evidence. As we have already seen, this averment is never necessary in a pure bill of discovery, wherein no relief is asked for, and no hearing thereof can be had. But, where the sole ground for the jurisdiction of a coui’t of equity in any given case, is the necessity of a discovery, and relief consequent upon such discovery is prayed for, then it must appear by the affidavit of the party that ho has not, without the discovery, the means of proving the fact, for it is only on that circumstance that the jurisdiction to grant the relief is founded. Minor’s Inst. su;pra. The court cannot pronounce any judgment on the rights of the parties except upon the hearing of the cause. It follows therefore if any exercise of the jurisdiction of the court is prayed which involves the necessity of a hearing, and a decree or decretal order on those rights, the suit is thereby rendered a suit for relief, and is liable to all the incidents of that proceeding. On the other hand if the assistance which *71 is prayed in addition to the discovery oe such as the court will give without a hearing of the cause, and no decree or decretal order be necessary on any rights as no judgment upon any right is required, the suit'is not a suit for relief. Judge Story discussing this question says “this distinction may be illustrated by a few common examples. It is a natural, if not a necessary incident, to the usefulness of a bill of discovery,that in the meantime, and until .the discovery is obtained the proceedings in the suit at law should be stayed; for otherwise the discovery might be wholly fruitless. Hence bills of discovery usually contain a prayer for an injunction until the discovery is obtained. In one sense this is a prayer for relief. But it being relief which is granted upon motion, without any hearing of the rights or merits involved in the cause it does not fall within the scope of this rule.” Story Eq. Pl., supra.

It seems to us therefore, that the plaintiff’s bill substantially and sufficiently sets forth everything material to show, that he was entitled to the discovery sought. Not being required, from the very nature of a bill of dicovory, to take proof in support thereof, he could not be in default in not doing so, and therefore the familiar rule that requires a party who has obtained an injunction to be always ready to maintain it, and which authorizes a defendant at any time, to move for the dissolution thereof, can have no application in this case. We arc therefore of opinion, that the circuit court erred in dissolving said injunction before the defendant had answered the bill, and that for this cause the decree of the circuit court rendered on the 4th day of July, 1883, dissolving the said injunction must be reversed, with costs to the appellant. And this Court proceeding to render such decree as the circuit court ought to have rendered, it is adjudged, ordered and decreed that the motion of the defendant, made on the 28th day of May, 1883, to dissolve the injunction heretofore awarded in this cause, be and the same is hereby overruled. And this cause is remanded to the circuit court for further proceedings according to the principles settled in this opinion and according to the principles governing courts of equity.

REVERSED. REMANDED.