Ex parte Monroe County Bank

• Decision Date: 30 November 1950
• Docket Number: 1 Div. 438
• Citation: 49 So.2d 161,254 Ala. 515
• Parties: , 23 A.L.R.2d 856 Ex parte MONROE COUNTY BANK.
• Court: Alabama Supreme Court

Page 161

49 So.2d 161

254 Ala. 515, 23 A.L.R.2d 856

Ex parte MONROE COUNTY BANK.

1 Div. 438.

Supreme Court of Alabama.

Nov. 30, 1950.

Barnett Bugg & Lee and R. L. Jones, of Monroeville, for petitioner.

Windell C. Owens, of Monroeville, and Nicholas S. Hare, of Monroeville, for respondent.

FOSTER, Justice.

The question here involved is whether an order of a judge of the circuit court, sitting in equity, should be vacated, which requires The Monroe County Bank to produce in court certain documents on November 7, 1950, at 9:00 A. M. This order was made in response to a motion made by the complainant in a suit in that court against James L. Minish for a divorce and the custody of the children, and in which complainant further sought to have set apart to her certain described property claimed by her as her separate estate, now in possession of respondent, and to make an allowance for her alimony and support of the children. It is alleged they own a home in which complainant resides, and he owns other real estate in Monroe County and is the owner or co-owner of a substantial business at Frisco City, known as Frisco Manufacturing Company, and has other business interests in Alabama and Mississippi, all of which was accumulated through her help and frugality; and further that complainant is the owner of certain stocks and bonds now wrongfully withheld by respondent, and that the furniture and fixtures located in the home are her separate property.

There has been no answer to the bill. The record shows no appearance by respondent, though counsel stated in argument that a demurrer has been filed. We get the sequence of events from the return of the judge to the rule nisi which we issued to set aside his order, referred to above, or show cause why he should not do so.

Complainant, after filing her bill of complaint, made application to perpetuate the testimony of J. B. Barnett, president of The Monroe County Bank, and other witnesses not named in the judge's answer. The register made and entered into the record an order for the examination of witnesses to perpetuate their testimony according to the terms of sections 491-505, Title 7, Code, of whom J. B. Barnett was one, and such examination was set for November 7, 1950 before the register. Prior to the hearing, complainant requested in writing that the register issue a subpoena duces tecum to The Monroe County Bank, which was issued and served on J. B. Barnett, president of The Monroe County Bank, directing it to appear and produce the documents.

On October 12, 1950, the said bank filed an appearance in this proceeding by way of an answer or reply to the subpoena duces tecum. In it the bank objected to complying with the subpoena duces tecum because, (1) the papers and documents are not properly described; (2) the particular documents are not set forth as required by law; (3) that said documents relate to its bank depositors and customers who are not parties to the suit at the instance of one who does not show a right to them; (4) the bank further deems as is its duty, and the duty of the court, to ascertain just what documents are desired and whether complainant is entitled to have them for use as testimony, and (5) the bank stands ready to obey all orders of the court and feels that its obligation to its clients makes in necessary to protect them unless in violation of its trust.

On October 21, 1950, the complainant moved the court to compel The Monroe County Bank to produce the records at or before the taking of testimony on November 7, 1950. On October 24, 1950, The Monroe County Bank moved the court to quash the motion of complainant to require the production of said documents on November 7th. Both motions came on for hearing on October 24, 1950 before the Hon. F. W. Hare, circuit judge sitting in equity. The court thereupon ordered The Monroe County Bank to produce in court said records on November 7, 1950. Said records are described in the motion made by complainant on October 21, 1950, and in the order of the judge on October 24th, in the following language:

'(a) All records of deposits and withdrawals of the Frisco Manufacturing Company, Inc., The Frisco Manufacturing Company, a partnership, composed of James L. Minish, and Janie L. Minish; and of Janie L. Minish, James L. Minish, and Bonnie M. Minish, individually; Frisco Bench Company, and the Basic Lumber Company.

'(b) All records of loans made to each of the parties or entities referred to in paragraph (a).

'(c) All copies of cancelled checks insofar as the same might be available relating to any of the parties or entities mentioned in paragraph (a).

'(d) All written representations or statements of financial condition rendered by or on behalf of the parties or persons referred to in (a) above.

'(e) All records of U. S. Government Bond purchases and sales (including 'cashing in') relating to any of the parties or entities mentioned in paragraph (a) above.

'(f) All records of safe deposit boxes including records showing time and date of entry to each box and by whom such entry was made relative to the parties or entities mentioned in (a) above.'

The answer of the judge to the rule nisi in this Court further states that the bank offered no evidence on the hearing of said motions, nor was any showing made of the facts set out either in the motion to quash or in the motion for the production of the papers.

We have here no question raised as to the sufficiency of the proceedings calling for the examination in order to perpetuate the testimony of J. B. Barnett, president of The Monroe County Bank. So that we presume on this hearing that the proper proceedings were had, as set out in section 492, Title 7, Code.

We note in passing that the proceeding is not an examination de bene esse under Rules 48 and 49 of Equity Practice, Code 1940, Tit. 7 Appendix, and also that the proceeding under section 492, supra, applies in equity as well as at law by its express terms. We had occasion in the case of Ex parte Cross, 247 Ala. 85, 22 So.2d 378, to point out some of the distinctions between a proceeding to perpetuate testimony and an examination de bene esse.

We come now to a consideration of the procedure looking to the production of the documents for such an occasion, and whether that procedure has been complied with.

A court of equity may on motion and due notice require parties to the cause to produce books, documents or writings in their possession or custody which are pertinent to the issue. This exists not by virtue of any statute but it is a well recognized equitable procedure for discovery. 27 Corpus Juris Secundum, Discovery, § 77, p. 114, notes 88 and 89. It is observed that this procedure only has application where a party to the cause is sought to be required to produce the documents.

Section 487, Title 7, Code, gives to courts of law the same power, to be exercised in the same way, as courts of equity. We are here dealing with a court of equity and, therefore, section 487 has no application.

There is no question raised to the effect that the documents sought are not under the control of Mr. Barnett, who is president of the bank, nor is such issue here made and, therefore, it will be presumed they are under his control. Cobb v. Lagarde, 129 Ala. 488, 30 So. 326; National Fertilizer Co. v. Holland, 107 Ala. 412, 18 So. 170.

Of course there are various methods for discovery. We refer to the right to examine the adverse party to a cause by interrogatories propounded to him under Rule 39 of Equity Practice, Code 1940, Tit. 7 Appendix. Our Court is very liberal in extending the power conferred by that rule as well as under section 477, Title 7, Code. Ex parte Rowell, 248 Ala. 80, 26 So.2d 554.

The proper procedure by which the production of the papers may be required of a person who is not a party to the cause is by a subpoena duces tecum. Section 489, Title 7, Code. In this matter it appears that a subpoena duces tecum was directed to The Monroe County Bank, of which Mr. Barnett is president, so that the documents may be had at the time of his examination to perpetuate his testimony.

We...