Ex Parte Calhoun, Ordinary. Supreme Court Of Georgia.

• Decision Date: 13 July 1891
• Citation: 13 S.E. 694,87 Ga. 359
• Parties: Ex parte Calhoun, Ordinary. Supreme Court of Georgia.
• Court: Georgia Supreme Court

13 S.E. 694

87 Ga. 359

Ex parte Calhoun, Ordinary. Supreme Court of Georgia.

Supreme Court of Georgia.

July 13, 1891.

Ex parte Calhoun, Ordinary.

Establishment of Lost Records — Production of Private Papers.

A witness cannot, under Act Oct. 22, 1887, be compelled, by a subpoena duces tecum, to make discovery of the contents of lost public records in a proceeding to establish a copy of such records, whore the pleadings for the purpose do not allege or set out anything whatever as the specific contents to be proved. The production of books and writings which are the private property of the witness will not be compelled for the information of the public, where such information is valuable, and where its disclosure is not sought as testimony for the proof of any alleged fact, but as a substitute in the first instance for the allegation of facts unknown, or not known sufficiently to enable the plaintiff to set them forth conformably to general laws applicable to pleading.

(Syllabus by the Court.)

Error from superior court, Fulton county; Marshall J. Clarke, Judge.

Hall & Hammond, for plaintiff in error.

Abbott & Smith, for defendant in error.

Bleckley, C. J. Each county is the owner of the public records appertaining to the several courts thereof, and, upon the loss or destruction of any book of that description, the county owning it would have, as such owner, a right, irrespective of the act of 1887, to have a copy of the same established if the requisite service could be effected on all parties interested. The act of 1887 takes the right for granted, and attempts to provide machinery for exercising it. It authorizes the ordinary to proceed by petition in the superior court, which petition must set forth the fact of stealing, loss, or destruction, specify the book as near as may be, and pray for the establishment thereof Upon thehe-ring of the petition, the court may, in its discretion, grant or deny it, as the public interest may require. In case the petition is granted, the court is to pass an order establishing a copy, or substantial copy, as near as may be; and, after its establishment, this copy is to be in all respects evidence, just as the original would have been. The provisions for taking evidence in aid of the petition, and reporting thereon, are contained in the fourth section of the act, which reads as follows: "It shall be lawful for said court, or the judge thereof, in vacation, in all cases where he shall deem it proper and necessary so to do, to appoint an auditor whose duty it shall be to hear evidence, and who shall have power to summon witnesses and compel the production of books and papers, under such rules and regulations as are now practiced in courts of law in this state; and he shall make his report to the court of such copies of such lost, stolen, mutilated, or destroyed copyes; and such report, when filed, shall be acted on by the court, and made the judgment, unless objection be filed to the same, or some part thereof, as being incorrect, which objection, if any, shall be heard and determined by the court without the intervention of a jury." Acts 1887, pp. 112, 113.

It will be observed that the power to compel the production of books and papers conferred upon the auditor is to be exercised, not according to any novel or arbitrary method of procedure, but "under such rules and regulations as are now practiced in courts of law in this state." The prescribed standard to which the auditor must conform is the practice of the courts. What a court of law could do without deviating from the rules and regulations which govern and control its practice the auditor can do. The auditor must guide his conduct by the rules and regulations applicable to courts. Where the person called upon is not a party to the cause, he can be reached by a subpoena duces tecum. Code, § 3514. The subpoena, after due service, must be complied with, or certain acts must be done by the witness in lieu of literal compliance, or a sufficient excuse for non-compliance must be rendered; otherwise an attachment will Issue on motion, and a fine be imposed for the default. Id. § 3515. The letter of the statute seems to contemplate that the time for rendering excuses is after attachment has issued, but no doubt this extension of the time is intended as an indulgence to the witness. Where he is not wholly disobedient, but appears as the writ of subpoena commanded him to do, there can be no reason why his excuse for not producing the books or documents called for should not be heard at once if the court is ready and willing to hear him. When he is already present, no attachment is needed to bring him into court; and if his excuse, on hearing the same, should prove to be good, it would necessarily show that he ought not to be dealt with by attachment or otherwise. What shall constitute a sufficient excuse the statute makes no attempt to specify or define. It leaves each case to be deter mined on its own facts. All it says on the subject is that the excuse is "to be judged of by the court." Whatsoever the court, in the exercise of a sound discretion, ought to deem satisfactory, should be recognized and accepted as sufficient. The excuse rendered to the auditor in the present instance was at bottom a claim of privilege. It challenged the power of the auditor. What it was in detail may be seen by consulting the official report. Resolved into its legal essence, it was that, consistently with the rules and regulations observed by the courts of law of this state, the witness could...