Eschbach v. Lightner

Miller, J.,

delivered the opinion of the Court.

The appeal from the final decree, dismissing the bill, presents for review the propriety of the previous interlocutory orders passed upon the petitions of the complainant for discovery and the production of books. The English Chancery practice on this subject has, to some extent, been modified by statutory provisions in this State. By the Code, Art. 16, secs. 20, 21, power is conferred upon the Courts of Equity, on the application of either party on the trial of any actions at law, or suits in chancery, either for discovery or relief, to require and decree that the parties shall produce either the original books, writings, or papers, or copies certified by a justice of the peace, of all such, parts of such books or papers in their possession or power, as contain evidence pertinent to the issue, or relative to the matters in dispute between the parties, to be used as evidence at the trial of such cause, provided the party making the application shall satisfy the Court, on oath or affirmation, that such books, writings^ or papers, contaiu material and necessary evidence, and that he cannot safely proceed to the trial of his case without the benefit of such testimony, and if the party required to produce shall fail to obey the order to that effect, the Court may, in its discretion, take the allegations of the bill pro confesso, and decree ex parte in such manner as shall appear just and reasonable.

These provisions have not, as far as we are informed, ever been construed by the Appellate Court. In many respects they are plain and need no- interpretation. The former Chancellors of the State have very properly said the power thus given is to be exercised with caution. It is, however, a power wisely conferred and in a proper case calling for its exercise should be exerted without hesitation. There are certain general rules governing its exercise in an equity suit, about which there can be no doubt. The existence of the books or papers called for must ap *533 pear from tbe bill or answer, or be shown in the course of the proceedings, and they must also be in the possession or under the control of the party required to produce them. They should be designated with a reasonable degree of certainty, and the facts expected to be proved by • them be stated so that they may appear to be pertinent to the issue or relative to the matters in dispute. The party requiring their production must also show that he has some interest in them; for if they relate solely to the case or defence of the opposite party, or merely contain accounts or entries which he has kept or made for his own security, he cannot be called upon to produce them, because in such case if admissions are sought for, they must be obtained by calling the party to the stand as a witness, or probing his conscience by interrogatories in a bill of discovery directed to that especial end.

In the present case a creditors’ bill was filed by the appellant against the administrators and heir at law of "W illiam P. Lightner, deceased. It charges an indebtedness from the deceased to the complainant of $8,555.50, made up of a balance due on an account stated on the 1st of November, 1865, of the amount of four promissory notes of the deceased in favor of the complainant and of cash loaned. The account and the notes are filed as exhibits with the bill. It also charges that the personal estate of the deceased is insufficient to pay his debts, and prays for a discovery of the real estate, for an account of the personal estate, and of the debts due to the complainant and others, and the application of the personalty to their payment, for a sale of the real estate to supply the deficiency, and for general relief. The defendants deny the alleged indebtedness, and aver that they have always understood from the deceased that the complainant was largely indebted to him; that among the papers of the deceased they find and exhibit with their answer certain evidences of debt against the complainant consisting of a *534 number of notes, drafts, and checks, amounting to $17,400, and that complainant was further indebted to the deceased in the sum of $3,242.13, for matters properly chargeable in account, as will appear by an account filed with their answer, and that for all this indebtedness they have instituted a suit at law against the complainant.

After replication aud issue of indebtedness vel non thus made up, two petitions were filed by the complainant, alleging in substance that Lightner, for many years prior to his death, was the agent of the complainant for the collection of a large amount of paving bills, and confiding in him as such agent the complainant intrusted to him the keeping of the accounts thereof; that Lightner kept books which are now in the possession of the defendants, in which such accounts are to be found, showing each of the items of indebtedness as charged in the bill, and that the same still remain due, and that there are no such items of set-off as claimed in the answer ; and praying for a discovery whether there are not such books in existence, and in the defendants’ possession, and for a specification of what they are, and for an order that they may be produced to be used in evidence.

The defendants, in answer to these petitions, do not deny in direct terms the fact of the agency as charged, or that no books were kept by Lightner containing accounts of the transactions relating to the agency, or that such books are in their possession or under their control. They deny that the deceased kept books of account by which the respective items of each and all of the complainant’s claim will appear, as will show that they remain due, or will show that no part of the defendants’ set-off is due, and they also deny that they have in their possession any books that show the indebtedness of deceased to complainant as charged in the bill. This denial does not meet the scope and extent of the discovery sought by the petitions. This was avoided by the objec *535 tion, which, the Court sustained, that the complainant had no right to ask a discovery by means of an interlocutory petition, and if there was any ground of discovery against them, it ought to have been set forth in the bill, or the bill ought to be amended for the purpose. The petitions were accordingly dismissed without requiring an answer to the discovery sought. In this we are of opinion there was error. The averment, if true, of the existence of the relation of principal and agent between Lightner and the complainant, shows such an interest in the accounts kept by the former, as such agent, as to entitle the latter to the production of the books or certified copies therefrom of all accounts of the affairs of the agency relating to the matters in dispute in this case. There is no necessity for an amendment of the bill to obtain a discovery of the books or accounts of the agency. The law authorizes the application to be made where the bill asks for relief alone, and there can be no possible objection in such a case, if sufficient interest in the books or accounts whose production is sought exists, to require by petition a discovery whether such books or accounts have been kept and are in the party’s possession, as a foundation for the application to produce them. Indeed the law seems to contemplate a discovery in this mode. If in answer the defendants deny on oath, in positive and direct terms, that there was any such relation of principal and agent as charged, or that any books containing accounts of the agency transactions were kept by the deceased, are in their possession or under their control, then the answer, if believed by the Court, concludes the question. No order for production can then be passed. But if the answer be equivocal or evasive, the judgment of the Court, regulated by the ordinary rules of evidence, must be applied in determining whether it is credible or not. No positive rule in the abstract can be laid down on such a point. Wigram on Discovery, 207, 208. .

*536 (Decided 18th December, 1869.)

■But for the error in the orders upon the petitions the final decree dismissing the bill would have been affirmed, for we entirely agree with the Court below, that the evidence which was taken in the case fails to establish any indebtedness of the deceased to the complainant. The latter, however, as we have said, was entitled to a specific and positive answer to the discovery asked in his petitions, and there was error in the orders dismissing them without requiring such answer. Whether the order should be in the alternative to produce the original books or certified copies of parts of their contents will depend on the character of the answer to the discovery. If this shows that separate books of the agency transactions were kept, then it will be proper to require the production of the originals; but if accounts of this nature are contained in the same books with other accounts of the deceased, then it will be proper that the order should be in the alternative.

•. The final decree, and the orders dismissing the appellant’s petitions will be reversed, and the cause remanded that an answer may be had to the discovery sought, and such further proceedings taken thereon as we have herein indicated.

Decree and orders reversed and cause remanded.