Dunlop v. Dist. Court of Greene Cnty.

• Decision Date: 17 December 1931
• Docket Number: 41222.,Nos. 40983,s. 40983
• Parties: DUNLOP v. DISTRICT COURT OF GREENE COUNTY ET AL.
• Court: Iowa Supreme Court

214 Iowa 389

239 N.W. 541

DUNLOP

v.DISTRICT COURT OF GREENE COUNTY ET AL.

Nos. 40983, 41222.

Supreme Court of Iowa.

Dec. 17, 1931.

Appeal from District Court, Greene County; P. J. Klinker, Judge.

This was a proceeding in certiorari.

Writ sustained, and judgment of district court reversed.Thomas & Loth, of Ft. Dodge, for petitioner.

Salinger, Reynolds & Meyers, of Carroll, for respondents.

PER CURIAM.

On February 19, 1931, the petitioner, G. Wm. Dunlop, as plaintiff brought an action in equity to foreclose a mortgage on certain Greene county real estate. This mortgage secured a note of $5,000 executed by Minnie B. Haag to the petitioner. The note and mortgage were dated May 10, 1930.

Walter G. Holden later was made a party defendant to this action by the plaintiff therein, who is the petitioner here, through an amendment to the petition. It is conceded in argument that for many years Minnie B. Haag and the father of the appellant Holden operated a private bank at Scranton. Financial difficulties overtook the banking business, and a receiver was appointed for the alleged partnership. Holden's father claims, according to the argument, that Minnie B. Haag is indebted to him for the advancement of more than his share of money to pay partnership obligations; that is to say, it is contended in the argument that Minnie B. Haag did not advance her share of the funds to pay the alleged partnership debts. This claim of the father, the contention is made in argument, was assigned to Walter G. Holden, a defendant in said equity case.

Apparently it is claimed in the argument by Holden, the defendant, that he expects to collect, under the assignment, the aforesaid claim against Minnie B. Haag through a supposed attachment already levied on the land, or by some other method very vaguely hinted at in the argument. These facts concerning Holden's procedure already taken or anticipated rather indefinitely appear in the argument. Nevertheless, it seems to be Holden's argument that the note and mortgage above named were obtained by the plaintiff in the foreclosure suit, who is the petitioner here, from Minnie B. Haag through one of the following methods: First, fraud; and, second, forgery. And, further, the contention seems to be that the note and mortgage were rendered void by the alteration of one or both of the instruments. Nothing definitely appears, however, concerning this, because Holden filed no pleading in the foreclosure proceeding. Rather than presenting issues through pleadings, Holden in his argument asks us to surmise what his contentions may be in the foreclosure action. The action to foreclose the mortgage has in no way been consolidated with Holden's supposed attachment suit, if one exists.

In any event, Holden appeared in the present foreclosure proceedings, and filed an application requiring the plaintiff there, and the petitioner here, to produce for inspection the note and mortgage in suit. Such application was unverified, and contained no allegations concerning the materiality of the requested inspection. Attention is especially called to the fact that the inspection was asked by Holden in order to enable him to plead. There is nothing, however, as before said, in the application to indicate why, or in what way, Holden would be aided in his pleading in establishing his defense by such inspection. Copies of both the note and mortgage were attached to plaintiff's (petitioner here) petition in the foreclosure action. The petitioner had no notice of the application to produce the original papers, and the same was presented by Holden to the court without the petitioner's presence.

An ex parte order was granted Holden by the district court, requiring that the note and mortgage be deposited with the clerk of the district court for Holden's inspection. As before explained, Minnie B. Haag neither appeared nor pleaded in the cause, and was, and now is, in default. Upon learning of the ex parte order, the petitioner appeared and moved that the order for the production of the note and mortgage be set aside. The basis for the petitioner's motion to set aside the order to produce the papers was: First, the application was unverified; second, the application stated no material reason for the production of the papers; and, third, the statute authorizing the production of the papers was in no way complied with. A hearing was had upon the petitioner's application to set aside the order. Both the petitioner and Holden appeared at that hearing. After listening to the parties upon this occasion, the district court overruled the petitioner's motion, and let the order for the production of the papers stand. To review that action of the district court, this writ of certiorari was obtained.

[1] I. Ordinarily, an order for the production of papers is not reviewable on appeal before judgment. Cook & Wheeler v. Chicago, R. I. & P. Ry. Co., 75 Iowa, 169, 39 N. W. 253;Devier v. Economic Life Association, 106 Iowa, 682, 77 N. W. 454;Stagg v. First National Bank, 203 Iowa, 84, 212 N. W. 342. Under proper circumstances, certiorari will lie to review such order for the production of papers. Davis v. District Court, 195 Iowa, 688, 192 N. W. 852;Iowa Farm Credit Corporation v. Hutchison, 207 Iowa, 453, 223 N. W. 271. In the words of this court, as expressed in Davis v. District Court (195 Iowa, 688), supra, reading on page 693, 192 N. W. 852, 854: “It is discretionary with the court whether a rule shall be entered, and, so far as the court confines its ruling within the discretion allowed by statute or it is merely erroneous, it is not subject to review in this court by an original proceeding in certiorari. * * * If, however, the order goes beyond the discretion and authority of the court, and thereby becomes illegal, or the court exceeds its jurisdiction, it is subject to review by certiorari.” Hence it is necessary now to determine on this certiorari proceeding whether the district court acted illegally or exceeded its jurisdiction in granting the order to produce the papers.

[2] II. According to the statutes involved, the district court may, in its discretion, require “the production of any papers or books which are material to the just determination of any cause pending before it, for the purpose of being inspected and copied by or for the party thus calling for them.” Section 11316, 1931 Code.

Following the foregoing provision, and supplementary thereto, section 11317 of that Code provides as follows: “The petition for that purpose shall be verified, and must state the facts expected to be proved by such books or papers, and that, as the petitioner believes, such books and papers are under the control of the party against whom the rule is sought, and must show wherein they are material. The rule shall thereupon be granted to produce the books and papers, or show cause to the contrary, if the court deems such rule expedient and proper.”

So far as the statute is concerned, then, the order to produce the papers cannot be granted, unless the application shows wherein the documents are material.

[3][4] It is contemplated also under section 11317, supra...