Ex parte State ex rel. Garrett

• Decision Date: 19 November 1953
• Docket Number: 6 Div. 583
• Citation: 68 So.2d 541,260 Ala. 18
• Parties: Ex parte STATE ex rel. GARRETT, Atty. Gen.
• Court: Alabama Supreme Court

Page 541

68 So.2d 541

260 Ala. 18

Ex parte STATE ex rel. GARRETT, Atty. Gen.

6 Div. 583.

Supreme Court of Alabama.

Nov. 19, 1953.

Si Garrett, Atty. Gen., and H. Grady Tiller and Wm. H. Burton, Jr., Asst. Attys. Gen., for petitioner.

Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, for respondent.

GOODWYN, Justice.

The state brought action against Baggett Transportation Co., Inc., in the circuit court of Jefferson County, for the recovery of tobacco taxes alleged to be due by said company under the Tobacco Sales Tax Act, Code 1940, Tit. 51, Sec. 718 et seq., as amended. The defendant filed a motion to have the state furnish a bill of particulars in accordance with Code 1940, Tit. 7, § 216. The state demurred to the motion, taking the point that the state, as the sovereign, is not subject to that statute, and further, that the state has already attached to its complaint, and made a part thereof, a list of the items composing the account which is the foundation of the suit. These demurrers were overruled, and an order was entered directing the plaintiff to prepare and file in the cause 'a bill of particulars covering and showing what quantity of said tobacco products was sold by the defendant to what person, firm or corporation and on what date, in so far as the plaintiff has knowledge or information on the date when said bill of particulars is filed herein'. The state then filed here its petition for a writ of mandamus to be directed to the Honorable Whit Windham, as judge of the circuit court of Jefferson County, commanding him to vacate and set aside his said order and to sustain the state's demurrers to defendant's motion and demand for a bill of particulars. The petition also contains an alternate prayer for a writ of prohibition. We issued a rule nisi as prayed for; and Judge Windham has made answer as required by said rule. The question now before us is whether a peremptory writ of mandamus should issue. For the reasons hereinafter given, our conclusion is that the writ should be denied; and it is so ordered. Section 216, Tit. 7, supra, is as follows:

'No profert of a written instrument is required in pleading, but, at any time previous to the trial, the defendant may have inspection of the instrument sued on, or the plaintiff of the instrument set up as matter of defense, upon notice to the attorney of the opposite party; or when an account is the foundation of the suit, a list of the items composing it, and whenever the defendant pleads a set-off, the plaintiff may likewise have an inspection of the instrument relied on, or when an account is relied on as a set-off, a list of the items composing the account.'

No point is made that the foundation of the suit is other than an account; it being recognized by the parties that the suit is based on an account within the terms of Sec. 216, supra.

The state's insistence is that there is no express provision in Sec. 216, supra, making it applicable to the state, and, therefore, the statute should not be held to apply to the state. Cited in support of this are State ex rel. Smith v. McCord, 203 Ala. 347, 348, 83 So. 71, and Ex parte Loveman, Joseph & Loeb, 241 Ala. 379, 380, 2 So.2d 446. But we do not consider those cases as controlling here. There we were dealing with the statute authorizing either party to a civil suit to propound interrogatories to the other party. Code 1940, Tit. 7, Sec. 477. The propounding of interrogatories is a discovery proceeding and is quite different from a requirement for furnishing a bill of particulars. The basic reasoning for the holding in the McCord case is thus stated in the opinion [203 Ala. 347, 83 So. 72]:

'As a general rule of statutory construction, without any express legislative declaration, general words in a statute do not apply to the state, nor affect its rights, unless an intention to the contrary appears. Ex parte McDonald, 76 Ala. 603; State [to Use of Montgomery County] v. Allen, 71 Ala. 543; State ex rel. Lott v. Brewer, 64 Ala. 287. There is no express provision making this statute applicable to the state, nor can we say that there is a necessary implication that it was the intent of the lawmakers to make it apply, simply because the state was not specially excepted from the operation of same.'

In Ex parte Loveman, Joseph & Loeb, supra [241 Ala. 379, 2 So.2d 447], we had this to say in speaking of Sec. 477, Tit. 7, supra:

'The statute is wholly remedial; is in the nature of a discovery at law; is cumulative in character. Without it, the State has all the remedies for the production of evidence on the trial of the civil suit open to the defendant. No prerogative of the State is involved. The public policy of this statute is mutuality of remedy throughout. It cannot be made to apply to one party and not to the other without emasculating it, striking down its express terms.'

We do not think that Sec. 216, supra, falls within the influence of either of the cited cases. Although the state is not mentioned in Sec. 216, and there is no express legislative declaration that this section applies to the state, it is our view, because of the very nature of a bill of particulars, especially when considered in connection with the right of the state to prosecute a civl action, carries with it a necessary implication that it was the intent of the lawmakers that it should apply to the state just the same as any other party.

A bill of particulars is not for the purpose of discovering evidence, nor to find out what a party knows, but what he claims. It is sought to amplify the pleading in order to limit the issues, while discovery is for the purpose of procuring evidence in order to prove one's cause of action. As stated in Gibbs-Hargrave Shoe Co. v. Peek, 212 Ala. 633, 635, 103 So. 672, the purpose of a bill of particulars 'is to amplify the very general form of the common count, so as to reasonably inform the defendant of what he is called upon to defend.' Also, in Wood & Pritchard v. McClure, 209 Ala. 523, 525, 96 So. 577, 579, it was held that, although a bill of particulars is not, strictly speaking, a part of the pleadings in a cause, it 'has the effect of a pleading in that the proof is restricted by it'. In Morrisette v. Wood, 128 Ala. 505, 508, 30 So. 630, 631, it is...