Detroit Bar Ass'n v. Am. Life Ins. Co., Motion No. 307.

• Decision Date: 02 October 1933
• Docket Number: Motion No. 307.
• Parties: DETROIT BAR ASS'N et al. v. AMERICAN LIFE INS. CO.
• Court: Michigan Supreme Court

264 Mich. 495

250 N.W. 288

DETROIT BAR ASS'N et al.

v.AMERICAN LIFE INS. CO.

Motion No. 307.

Supreme Court of Michigan.

Oct. 2, 1933.

Appeal from Circuit Court, Wayne County, in Chancery; Ira W. Jayne, Judge.

Suit by the Detroit Bar Association and others against the American Life Insurance Company. From an order denying defendant's motion to recall, cancel, and quash a subpoena duces tecum, defendant appeals, seeking relief in nature of mandamus to compel circuit judge to grant relief sought in defendant's motion.

Writ of mandamus denied.

Argued before the Entire Bench, except CLARK, J., who took no part.George E. Leonard and Harry F. Johnson, both of Detroit (Fred H. Aldrich ad Wilber M. Brucker, both of Detroit, of counsel), for appellant.

George E. Brand and Ben O. Shepherd, both of Detroit, for appellees.

NORTH, Justice.

Plaintiff association alleges in its bill of complaint that the defendant is illegally engaged in the practice of law in the state of Michigan; and asserts incident thereto the defendant has caused advertisements to be printed, has sent written communications to its Michigan policyholders, and has represented to them and other residents of Detroit to whom defendant sought to sell insurance that it would render to them certain specified services which plaintiff alleges constitute the practice of law, notwithstanding defendant is not legally licensed to practice law in this state. Plaintiff seeks to have defendant enjoined from continuing such practice. After the suit was at issue, plaintiff caused to be served upon the president, vice president, and executive vice president of the defendant company a subpoena duces tecum requiring each of them to appear before the court to testify in the cause and to bring books, records, files, correspondence, and various other papers and memorandum of the defendant company. The portion of the subpoena duces tecum specifying the items to be produced is printed in the margin hereof.¹ Upon being served with the subpoena defendant filed a motion asking the court that it be recalled, canceled, and quashed. Specific objections were made to the subpoena, among which were the following: That the court had not jurisdiction to issue it in its present form; that to enforce it would violate the constitutional rights of defendant, would compel the defendant to incur great, unnecessary, and unreasonable expense, expose its records to danger of loss and injury incident to being brought into court; that confidential matters would be exposed; and that use of the items demanded as evidence against defendant would be illegal, unjust and oppressive. After hearing the repective parties, the trial court denied defendant's motion. Permission being granted, it has brought this appeal in the nature of mandamus to compel the circuit judge to grant the relief sought in defendant's motion.

‘The power of a court to compel the production of private papers can only be exercised where a person has books containing evidence material to the issue before the court, and where the necessity for their production, and the reasonableness of such action, is shown; and, until this foundation is laid, until their relevancy or character is specified, an order for their production in a case is a violation of the constitutional protection of the one compelled to produce them. An order limiting the examination of a party's books to pertinent matters does not infringe the guaranty. * * *

‘The question of whether the demand so exceeds the limits of proper investigation as to amount to unreasonable search is always a judicial one.’ 56 C. J. p. 1170. See, also, 28 R. C. L. p. 420.

Primarily, this is a matter which has to do with the administration or conduct of the affairs of the trial court. Unless appellant's rights have been invaded, or unless an abuse of discretion on the part of the trial court is shown, the appellate court should not interfere. The right of mandamus sought by appellant is not a matter of right, but rather one of grace. Lapham v. Wayne Circuit Judge, 243 Mich. 154, 219 N. W. 650;Burgess v. Jackson Circuit Judge, 249 Mich. 558, 229 N. W. 481. In the absence of a showing indicating a reasonable necessity...