Downie v. Nettleton

• Decision Date: 01 April 1892
• Citation: 24 A. 977,81 Conn. 593
• Court: Connecticut Supreme Court
• Parties: DOWNIE v. NETTLETON.

24 A. 977

81 Conn. 593

DOWNIE

v. NETTLETON.

Supreme Court of Errors of Connecticut.

April 1, 1892.

Appeal from superior court. New Haven county; Thayer, Judge.

Action by Jane Downie against Joseph F. Nettleton for the conversion of personal property. From a judgment for plaintiff, defendant appeals. Affirmed.

T. H. Russell, for appellant.

G. D. Watrous and E. G. Buckland, for appellee.

CARPENTER, J. This is an action for the conversion of personal property. The defendant in his answer denies that the goods sued for were the property of the plaintiff. In his second defense he alleges that he was a deputy sheriff for New Haven county, that the goods were the property of William M. Reynolds, or of his wife, Jessie Reynolds, and that he took and now holds them under lawful writs of attachment to him directed for service against said William M. and Jessie Reynolds. The plaintiff in his reply denies that the title to the property is in William M. Reynolds or Jessie Reynolds. The defendant's counsel then filed a motion for a discovery of facts within the knowledge of the plaintiff, and for the production of papers in her possession, therein alleging that the complaint says nothing as to the nature and origin of the plaintiff's title, that the defendant is unable to ascertain the nature of her claim, and that she refuses to disclose the same, and that she is not a resident of this state. He then alleges that the "defendant is utterly unable properly to prepare his defense to this action, unless he is apprised of the nature and origin of the plaintiff's claim.' In connection therewith he filed 17 interrogatories, all of which relate to the plaintiff's case, and not to the defense. The plaintiff demurred on the following grounds: "(1) It does not appear that the matters for which a disclosure is asked are materia] to the defense of the suit. (2) It does not appear that the relief prayed for cannot be obtained in the pending suit. (3) It appears that the interrogatories are merely of a fishing character. (4) The motion is not filed by the defendant, nor is the affidavit thereto made by the defendant. (5) The matters as to which a disclosure is sought apply only to the support of the case of the plaintiff." The demurrer was sustained. The case was then tried on its merits, and judgment rendered for the plaintiff. The defendant appealed.

The first error assigned is that "the court erred in overruling the claim of the defendant and denying the motion for disclosure." The motion for a disclosure was a proceeding under the statute of 1889, c. 22. The first section of the act provides that "the plaintiff at anytime after entry of action, and the defendant at any time after answer, may file a motion praying for a disclosure of facts, or production of papers, books, or documents material to the support or defense of the suit, within the knowledge, possession, or power of the adverse party, and such facts, papers, books, or documents, being disclosed or produced, may be given in evidence by the party filing such motion." The question turns upon the proper construction of this section of the statute. Has the defendant a right to call upon the plaintiff, in advance of the trial, to disclose the proof which she proposes to offer, verbal and written, in support of her title, and that for the purpose of enabling him to prepare his defense? The language of the statute, critically considered, gives no countenance to such a claim. The plaintiff can only file his motion after he has stated his case in the complaint and entered his action, and the defendant after he has filed his answer. That seems to indicate that neither can call upon the other to disclose facts, or exhibit books and papers, to enable him to state his case. He must first state his case, and then, if he has reason to believe that he cannot prove it without a disclosure, he may be entitled to it. But here the plaintiff alleges title in herself. The defendant alleges title in Reynolds. He now calls upon the plaintiff to state facts within her knowledge, and produce books and papers in her possession, not for the purpose of proving title in Reynolds, but for the purpose of showing what proof she has in support of her, own title Surely the statute does not contemplate such a proceeding for such a purpose. If it did, then the plaintiff, with equal propriety might call upon the defendant to show his hand. The statute only applies when the case of the party invoking its aid, or some material part of it, is within the exclusive knowledge or possession of the adverse party. That is apparent from the concluding sentence of the part quoted,—" and such facts, papers, books, or documents, being disclosed or produced, may be given in evidence by the party tiling such motion." This statute is a substitute for sections 1060 and 1061 of the General Statutes...