Howe v. Mutual Reserve Fund Life Ass'n

Ladd, J.

The depositions had been returned and filed by the clerk. They then became a part of the files in that particular case, to be kept by the clerk under the direction of the judge. Section 287, Code. ’They could not be taken from the office previous to the next term of. court, “unless by the written consent of all of the parties” (section 4707, Code) ; and at no time without leave. Pelamourges v. Clark, 9 Iowa, 20 ; Hale v. Gibbs, 43 Iowa, 380 . Though not a part of the record in that case for the purposes of an appeal, they were original papers, duly filed, and formed a part of the records of the court. Section 288, Code. As they were taken for' this purpose, it is wholly immaterial a.t whose instance or expense this was done. Upon filing, one party might as freely use them as the other. Walkley v. Clarke, 107 Iowa, 451 ; Brown v. Byam, 65 Iowa, 374 . And in a •subsequent action between the same parties they are at the disposal of either as evidence. Shaul v. Brown, 28 Iowa, 37 ; Atkins v. Anderson, 63 Iowa, 739 ; Searle v. Richardson, 67 Iowa, 170 .

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*287 The control of the party taking is only, as clearly indicated in Hale v. Gibbs, supra, that of determining whether he will offer them in evidence. There appears to be no dis-' tinction, aside from the manner of procedure, between those taken on notice, commission, or stipulation. Nor is there ;any provision for the return of depositions to the party taking them upon the final disposition of the case or when not used. They continue a part of the files in the case and •of the records of the court. It is settled law that destroyed •or lost records may be supplied. Loomis v. McKenzie, 48 Iowa, 416 ; Gammon v. Knudson, 46 Iowa, 455 . And if •one of the court records have been removed or files taken it Is quite as much within its authority to order their return. *288 As said in Railway Co. v. Given, 69 Iowa, 581 . “Of necessity, the court has the power to protect and preserve the records and papers in its custody from spoliation. To this end-it may undoubtedly proceed at any timej with or without motion, whenever it has information that such paper has been removed, to order and direct that it be returned by any of its officers having the possession of such paper, or who may have removed it from the files without leave of the court. The power of the court in this respect is not dependent on a notice, but exists independent of it. The court may, in the first instance, order the paper to be returned without previous notice to the person who has such a paper in his possession, or who has taken it from the files, and it is immaterial whether the paper was properly or improperly removed. It is sufficient for the court to know that some of its records or papers in its custody have been removed or taken without its consent.” It is of the highest importance that court records and files be preserved. These often relate to the disposition of property, and always to the adjustment of rights more or less valuable, and-contingencies are constantly arising, which could not have been anticipated by the acutest foresight, where their preservation is of the utmost value. That these depositions were removed by defendant’s attorneys is not denied, and, for all that appears, one of them, residing in New York City, or defend■ant, still retains them. The defense is not by way of excuse for not returning them to the files, but an attempt to justify withholding therefrom. It is wholly untenable. The method or motive through which the court’s attention was directed to the retention of the papers is immaterial, as it could have as well have proceeded on its own motion. It is suggested by appellant that the proceedings ought not to be had under the title of the original action. That was a mere matter of convenience, and doubtless for the purpose of identification. It did not revive the action, nor malee the motion a part of it. *289 The point as to whether the appeal might be taken therein or at all is not raised, and, as we affirm, need not be decided. Possibly certiorari would afford the more available remedy. —Aeeirmed. •