Ex parte Hart

• Citation: 200 So. 783,240 Ala. 642
• Decision Date: 27 February 1941
• Docket Number: 6 Div. 791.
• Parties: EX PARTE HART ET AL.
• Court: Alabama Supreme Court

200 So. 783

240 Ala. 642

EX PARTE HART ET AL.

6 Div. 791.

Supreme Court of Alabama

February 27, 1941

Original petition of Morey Hart, as executive vice-president of the Birmingham Real Estate Board, Inc., and Birmingham Real Estate Board, Inc., for mandamus to require W. L. Hogue, as special judge of the circuit court of Jefferson county, to set aside and expunge an order made in the case of State of Alabama, plaintiff, v. Bessie S. Massey and others defendants, pending in the circuit court of Jefferson county ordering petitioners to respond to and obey the provisions and directions of a subpoena duces tecum issued at the instance of the defendants in said cause.

Mandamus granted.

Lange Simpson, Brantley & Robinson and Reid B. Barnes, all of Birmingham, for petitioners.

Smith, Windham, Jackson & Rives and Leader, Hill & Tenenbaum, all of Birmingham, for respondent.

Thos. S. Lawson, Atty. Gen., John W. Lapsley and J. Edw. Thornton, Asst. Attys. Gen., and George Lewis Bailes, Sol., and Burgin Hawkins, Asst. Sol., both of Birmingham, for the State, amicus curiæ.

BOULDIN Justice.

Section 7774 of Code of 1923 deals with the production of documents under the control of a party to a suit at law for use as evidence by the opposing party. In such case, the court, on motion of the party desiring the production of such document in possession of the opposing party, may after notice require the production of a document "which contain[s] evidence pertinent to the issue."

In Steverson v. Agee & Co., 14 Ala.App. 448, 70 So. 298, the Court of Appeals, in a well-considered opinion by Judge Thomas, reviewed the history of this statute, defined its purpose and field of operation, in the light of the common law, with citation of authorities.

In Alabama Great Southern Railroad Co. v. Taylor, 129 Ala. 238, 29 So. 673, 675, this statute was construed by this court. The action was for damages for destruction of property by fire alleged to have been communicated by the negligent operation of a locomotive. The plaintiff moved to require the defendant to produce the written report of its engineer touching the operation of the locomotive. This court said: "The report made to the defendant by its engineer was prima facie not evidence for either party. Culver v. [ Alabama Mid.] R. Co., 108 Ala. 330, 18 So. 827. That it might have been used to contradict the engineer if he had denied its contents did not bring it within section 1859 of the Code, which provides for compelling the production of writings 'pertinent to the issue.' "

In Culver, Adm'r. v. Alabama Midland Railway Co., 108 Ala. 330, 18 So. 827, 830, similar reports were called for by statutory interrogatories for discovery at law, now Code, § 7764, we quote: "The defendant answered that the engineer and section foreman (giving their names) made unsworn reports of the injury to the deceased, in accordance with the rules of the company, but such reports were made for the private information of the company, were its private property, and the defendant declined to attach the same to its deposition. Section 2816 of the Code of 1886, which authorizes either party to propound interrogatories to the adverse party, contemplates the eliciting of legal evidence, facts which tend to support the claim of the plaintiff or the line of the defense. Unsworn ex parte statements of persons not parties are mere hearsay, and prima facie inadmissible. These reports, made subsequent to the injury, were not competent as original evidence for any purpose. The reason assigned for withholding the reports may not have been sufficient if the reports contained competent evidence, but the withholding of statements which were not admissible as evidence gave the plaintiff no right to move for a judgment by default."

In the instant case we are concerned with the production of documents in the possession of third persons, not parties to the suit for use on the trial of a case at law, through a subpoena duces tecum.

This process was known at common law; literally, "subpoena"--command under penalty; "duces tecum"--you bring with you.

"A subpoena duces tecum is a process or writ whereby a court, at the instance of a suitor, commands a person who has in his possession or control some book or paper which is pertinent to the issues of the pending controversy to attend and produce it for use at the trial." 70 C.J. p. 48, § 32.

At common law it was issued on order of the court, not by a clerk, or other ministerial officer. 70 C.J. p. 48, § 34.

Whoever could be a witness could be compelled by this process to attend with papers desired in connection therewith.

The common-law rule that a party to the suit was not subject to this writ seems to have grown out of the other common-law rule that a party was incompetent as a witness by reason of interest. 70 C.J. p. 49, § 36.

Touching the showing to be made on application for such writ, it is written: "On a motion or application for a subpoena duces tecum at least where its issuance is opposed or the rightfulness thereof assailed, it must be made to appear that the evidence which the books or papers of which production is asked will furnish is competent, and relevant and material to the issues before the court. * * * Facts which will enable the court to judge of the relevancy and materiality of the documents must be stated." 70 C.J. p. 52,§ 39.

The witness upon whom such writ was served had the right to question its validity and his legal duty to comply therewith; to that end application was made to the court to vacate it; and on such hearing it was proper for the court, to consider, among other things, whether the document "is prima facie sufficiently relevant to justify enforcing its production; but the subpoena should not be quashed or set aside, on the ground that the evidence called for by it is not relevant or material, in a close or doubtful case, but only where the futility of the process to uncover anything useful or legitimate is inevitable or obvious." 70 C.J. p. 55, § 42.

With this background we consider Section 7776 of the Code of 1923, providing for the issuance of a subpoena duces tecum for a witness not a party to the suit.

This section looks to the issuance of this process to produce any "document...