American Life Ins. Co. v. Powell

• Decision Date: 13 March 1953
• Docket Number: 6 Div. 401
• Citation: 259 Ala. 70,65 So.2d 516
• Parties: AMERICAN LIFE INS. CO. et al. v. POWELL. Ex parte AMERICAN LIFE INS. CO. et al. -402.
• Court: Alabama Supreme Court

Page 516

65 So.2d 516

259 Ala. 70

AMERICAN LIFE INS. CO. et al. v. POWELL Ex parte AMERICAN LIFE INS. CO. et al.

6 Div. 401-402.

Supreme Court of Alabama.

March 13, 1953.

Rehearing Denied May 28, 1953.

Hugh A. Locke, Hugh A. Locke, Jr., F. R. Ingram and Reid B. Barnes, all of Birmingham, and Melvin Hutson and Noble J. Russell, Decatur, for appellants and petitioners.

Wilkinson & Skinner, Birmingham, for appellees and respondent.

GOODWYN, Justice.

This is one of several cases pending here in which questions relating to the perpetuation of testimony under Code 1940, Title 7, Sections 491 to 505, as amended, are involved.

While the record in this case, on first examination, appears to be quite involved we think the resolvement of two questions presented will effectively dispose of this appeal.

The first question, a procedural one, calls for determination of the proper method of reviewing orders granting applications to perpetuate testimony under Title 7, Section 491 et seq., as amended, supra. Our conclusion is that such orders are not appealable, and that mandamus is a proper remedy.

The second question involves the sufficiency of the affidavits made pursuant to Section 492, Title 7. Specifically, we must decide what is intended by the requirement of Section 492 that 'The applicant must make affidavit before a circuit or probate judge, or register stating * * * the facts generally expected to be proved by the witness.' (Italics supplied.) Our view is that the affidavits do not meet the requirements of Section 492; that the applications clearly show that the purpose of each is discovery, which is not within the purview of the statutes, supra, authorizing the perpetuation of testimony; and that the judge of the circuit court erred in granting the applications.

Appellee Powell made two affidavits, one on October 26, 1951, before Eugene H. Hawkins, Circuit Judge, prior to the filing of suit, and the other on February 28, 1952, before G. H. Boyd, Register, after suit was filed on November 12, 1951. The first affidavit recites, among other things, 'that he expects to be a party to a suit in the Circuit Court of Jefferson County, Alabama, in Equity, in which affiant and others will be parties complainant, and the American Life Insurance Company, a Corporation, and others will be parties respondent,' and 'that the testimony of each of the following witnesses whose names and places of residence as stated is necessary to prosecution of said suit.' There is then set out the names and addresses of twenty-five witnesses, all residents of Alabama, with eitht of the witnesses residing outside of Jefferson County. The affidavit also recites the names of seventeen parties expected to be adverse in said suit, and their respective ages and residences; thirteen of whom are also listed among the twenty-five witnesses. To meet the requirement of Section 492, Title 7, Code of 1940, that the affidavit state 'the facts generally expected to be proved by the witness', is the following portion of the affidavit:

'(3) The facts generally expected to be proved by each of said witnesses are:

'(a) The receipt of secret profits by B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert and M. S. Hobbs and the amounts thereof while agents, or officers of the American Life Insurance Company, a corporation.

'(b) Transactions between American Life Insurance Company, a corporation, and its agents, debtors, officers, employees and other persons, firms, and corporations.

'(c) The connection of B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert, M. S. Hobbs with said transactions.

'(d) The sums of money received by B. P. Autrey, T. W. Wert, Mrs. E. B. Montgomery and M. S. Hobbs from or as a result of said transactions.

'(e) Transactions between Conville & Company and the American Life Insurance Company, a corporation, Mrs. E. B. Montgomery, T. W. Wert and M. S. Hobbs.

'(f) The general ledger and all subsidiary ledgers and all of the books and records of the American Life Insurance Company, a corporation, and the genuineness of the entries therein relating to loans, commissions, compensations or other payments to B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert, M. S. Hobbs and J. W. Harrell, and to third persons, firms and corporations.

'(g) The ledger account, checking account, loan account, savings account and the time deposit account of the First National Bank of Birmingham, Alabama, with B. P. Autrey, T. W. Wert, Mrs. E. B. Montgomery and M. S. Hobbs.

'(h) The ledger account, checking account, loan account, savings account and the time deposit account of the Exchange Bank, Birmingham, Alabama, with B. P. Autrey, T. W. Wert, Mrs. E. B. Montgomery and M. S. Hobbs.

'(i) The ledger account, checking account, loan account, savings account and the time deposit account of the Birmingham Trust National Bank, Birmingham, Alabama, with B. P. Autrey, T. W. Wert, Mrs. E. B. Montgomery and M. S. Hobbs.

'(j) The income tax returns and amendments thereof, of Mrs. E. B. Montgomery, T. W. Wert, B. P. Autrey and M. S. Hobbs for the years 1940 to 1950, inclusive, and oral and written statements made by them with respect to said returns or income to any agent or employee of the State or Federal Government.

'(k) The books and records of the National Union Life Insurance Company, and the genuineness of the entries therein relating to acquiring the hospital business or the health and accident and hospital contracts and policies of the American Life Insurance Company, a corporation.

'(l) The proceedings, action of the Board of Directors of the American Life Insurance Company, a corporation, or the Executive Committee of said Board of Directors with respect to said transactions and the minutes of said Board and said Executive Committee and the genuineness of the same.'

The affidavit also recites the following:

'(5) In order to completely develop the facts it is necessary that:

'(a) The witness, V. J. Sellers, Assistant Cashier of The First National Bank of Birmingham, Alabama, bring with him the deposit slips, ledger account, checking account, loan account, savings account and time deposit account of B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert and M. S. Hobbs with the First National Bank of Birmingham, Alabama, from January 1, 1940, to date.

'(b) The witness L. D. Coates, Vice-President and Comptroller of the Birmingham Trust National Bank, Birmingham, Alabama, bring with him the deposit slips, ledger account, checking account, loan account, savings account and time deposit account of B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert and M. S. Hobbs with the Birmingham Trust National Bank, Birmingham, Alabama, from January 1, 1940, to date.

'(c) The witness, Eugene Lott, Assistant Cashier of the Exchange Bank, Birmingham, Alabama, bring with him the deposit slips, ledger account, checking account, loan account, savings account and time deposit account of B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert and M. S. Hobbs with the Exchange Bank, Birmingham, Alabama, from January 1, 1940, to date.

'(d) The witness T. W. Wert, bring with him the general ledger, the subsidiary ledgers and all other books and records of the American Life Insurance Company, a corporation, relating to loans, commissions, or other payments made to B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert, M. S. Hobbs, and all books and records of said corporation relating to loans made by the said corporation to third persons, firms and corporations, since January 1, 1940, and all income tax returns or copies thereof made by T. W. Wert to the United States Government or to the State of Alabama for the years 1940 to 1950, inclusive, and also all cancelled checks drawn to the order of Mrs. E. B. Montgomery; also the minutes of the Board of Directors of the American Life Insurance Company, a corporation, the minutes of the Executive Committee of the Board of Directors of the American Life Insurance Company, a corporation, and the stock book of the American Life Insurance Company, a corporation.

'(e) The witness, M. S. Hobbs, bring with him the general ledger, the subsidiary ledgers and all other books and records of the American Life Insurance Company, a corporation, relating to loans, commissions, or other payments made to B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert and M. S. Hobbs, and all books and records of said corporation relating to loans made by the said corporation to third persons, firms and corporations since January 1, 1940, and all income tax returns or copies thereof made by M. S. Hobbs to the United States Government or to the State of Alabama for the years 1940 to 1950, inclusive, and also all cancelled checks drawn to the order of Mrs. E. B. Montgomery; also the minutes of the Board of Directors of the American Life Insurance Company, a corporation, the minutes of the Executive Committee of the Board of Directors of the American Life Insurance Company, a corporation, and the stock book of the American Life Insurance Company, a corporation.

'(f) The witness, Mrs. E. B. Montgomery, bring with her the general ledger, the subsidiary ledgers and all other books and records of the American Life Insurance Company, a corporation, relating to loans, commissions, or other payments made to B. P. Autrey, Mrs. E. B. Montgomery, T. W. Wert, and M. S. Hobbs, and all books and records of said corporation relating to loans made by the said corporation to third persons, firms and corporations since January 1, 1940, and all income tax returns or copies thereof made by Mrs. E. B. Montgomery to the United States Government or to the State of Alabama for the years 1940 to 1950, inclusive; also the minutes of the Board of Directors of the American Life Insurance Company, a corporation, the minutes of the Executive Committee of the Board of Directors of the American Life Insurance Company, a corporation, and the stock book of the American Life Insurance Company, a corporation.

'(g)...