Bank v. Mcarthur

• Decision Date: 08 April 1914
• Citation: 81 S.E. 327,165 N.C. 374
• Court: North Carolina Supreme Court
• Parties: GERARD NAT. BANK. v. McARTHUR et al.

(165 N.C. 374)

81 S.E. 327

GERARD NAT. BANK.

v.McARTHUR et al.

Supreme Court of North Carolina.

April 8, 1914.

Discovery (§§ 84, 106*)—Inspection op Instruments Pending Action — Authority op Court.

Revisal 1905, § 1656, providing for an inspection and copy of papers containing evidence relative to the merits of the action or the defense, authorizes the court in which an action on a note is pending to permit defendants, denying the execution of the note, to inspect it and take a photographic copy of it.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 108, 138; Dec. Dig. §§ 84, 106.*]

Appeal from Superior Court, Cumberland County; Rountree, Judge.

Action on a note by the Gerard National Bank against Adam McArthur and others. From an order allowing an inspection and the taking of a photographic copy of the note in controversy, plaintiff appeals. Affirmed.

Civil action to recover on a note for $15,-000, purporting to be signed by Adam and Mrs. M. C. McArthur and others, and the execution of which was denied by the defendants named, heard on motion to permit the inspection and taking of photographic copy of the note in controversy. Motion having been allowed, plaintiff excepted and appealed, assigning for error that the court had not power to make such an order.

Rose & Rose, H. S. Averitt, and Robinson & Lyon, all of Fayetteville, for appellant.

Shaw & MacLean, of Fayettevile, McLean, Varser & McLean, of Lumberton, and Jones & Bailey, of Raleigh, for appellees.

HOKE, J. The order made by his honor comes clearly within the provisions of our statute applicable to the case which is as follows (1 Revisal, § 1656): "The court before which an action is pending, or a judge thereof, may, in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents in his possession or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both."

This statute was primarily designed and intended to afford the facilities for the ascertainment of truth that were formerly supplied by bill of discovery, and, while it is broader in its scope and effect, the decisions on the old method of procedure are in certain instances now helpful to its correct interpretation (Fields v. Coleman, 160 N. C. 11, 75 S. E. 1005; Bailey v. Matthews, 156 N. C. 78, 72 S. E. 92), and, under our former procedure, by bill in equity or under statutes expressly referring to the equitable rules prevailingin such cases (Rev. Code, c. 31, § 82; Rev. St. c. 31, § 86), on issue joined as to the genuineness of a note, its production for an inspection and copy was considered and held to be a proper instance for the exercise of this power by the court (Scarborough v. Tunnell, 41 N. C. 103; McGibboney v. Mills, Executor, 35 N. C. 163).

In this last case, Nash, J., delivering the opinion, said: "Here the defense is that the instrument on which the action is brought is a forgery. How is it possible for the defendant to support his plea that it is not the deed of his testator unless he can have free access to it, both for his own inspection, and that of his witnesses? Such testimony is pertinent to the issue the jury have to try. This too is the course of the English Courts of Chancery"—citing Beckford v. Beckford, 16 Vesey, 438.

Nor is the objection well taken that the copy is to be made by photography. Where a copy of an instrument or a locality has been ordered, as properly...