Ga. Iron & Coal Co v. Etowah Iron Co
| Decision Date | 27 May 1898 |
| Court | Georgia Supreme Court |
| Parties | GEORGIA IRON & COAL CO. et al. v. ETOWAH IRON CO. |
Production of Books and Papers—Notice—Default—Order of Court—Validity.
1. The provisions of section 5248 et seq. of the Civil Code, relating to the subject of notice to produce books and papers, are applicable to all cases, whether the relief prayed for be legal or equitable.
2. Before a judgment by default can be rendered against the defendant on account of failure to comply with the notice served upon him in accordance with the provisions of the sections above cited, it is necessary that there should be a peremptory written order made by the court, and entered upon its minutes, requiring the production of the papers, and providing for a reasonable time, according to the circumstances of the case, in which the parties shall comply with the order.
3. Where notice to produce papers, as to certain of the papers called for, is sufficiently definite, and as to others too vague and uncertain in description and too extensive in range, and where, upon failure to comply with the notice, the judge directs the party notified to produce the papers called for in the notice, without specifying what part of the notice the order refers to, such order and a judgment by default entered for a failure to comply with the order are illegal.
4. It is error in the court to grant a peremptory order to produce documents embraced in the notice to produce papers, where the party giving it, or his agent, does not make oath, nor his attorney state in his place that he has reason to believe, that the paper required is, or has been, in existence, and that it is in the power, possession, or control of the person notified, and that it is material to the issue.
(Syllabus by the Court.)
Error from superior court, Bartow county; A. W. Fite, Judge.
Action by the Etowah Iron Company against the Georgia Iron & Coal Company and others. From a judgment entered by default, defendants bring error. Reversed.
J. W. Harris, Jr., and J. M. Neil, for plaintiffs in error.
John W. Akin, for defendant in error.
COBB, J. 1. By sections 5248-5250 of the Civil Code it is provided: "The several courts shall have power on the trial of any cause cognizable before them respectively, on notice and proof thereof being previously given by the opposite party, or his attorney, to require either party to produce books, writings and other documents in his possession, power, custody or control, which shall contain evidence pertinent to the cause in question, under circumstances where the party might be compelled to produce the same under the ordinary rules of proceeding in equity." "The notice required by the preceding section shall be in writing, signed by the party seeking the production of the books or other writings, or his attorney." "If the plaintiff or his attorney, being so notified, shall fail or refuse to comply with such order, the court shall, on motion, give judgment against such plaintiff as in case of nonsuit; and if the defendant shall fail or refuse to comply therewith, the court, on motion, shall give judgment against such defendant, as in case of judgment by default." In 1849 it was held by this court that the provisions now embodied in the sections quoted did not apply to equity causes, for the reason that courts of equity do not award judgments of nonsuit nor judgment by default, and for the further reason that courts of equity have, independent of these provisions, ample power to compel the production of books and papers which may be necessary or material upon the trial of causes in that court. Berry v. Mathewes. 7 Ga. 457. In 1887 the general assembly passed what Is known as the "Uniform Procedure Act." See Acts 1887, p. 64. By that act the court of equity was abolished, and the superior court now has full power to grant complete relief to all suitors, applying in aid thereof either legal or equitable remedies, or both. All of the plaintiff's rights can now be determined in one action. In the trial of any case before it, the superior court acts either as a court of law, or of equity, or of both, and uses all the machinery appropriate to the case to which the respective parties are entitled. See, in this connection, Manheim v. Claflin, 81 Ga. 129, 7 S. E. 284, and De Lacy v. Hurst, 83 Ga. 223, 9 S. E. 1052. We think it in keeping with the spirit of the act above cited and of the decisions of this court construing the same to hold that the provisions of the sections above quoted are applicable to all cases, whether the relief prayed for be legal or equitable. If this were not true, a plaintiff in a suit founded on an equitable cause of action would be required to file a proceeding in the nature of a bill of discovery in aid of his action to require the production of writings in the defendant's posses-sion, and material to his case. The spirit of the act of 1887 is that all questions necessary to be decided shall be determined in one action, and the parties therein given such relief, and allowed to invoke such remedies, either legal or equitable, as they are entitled to,
2. Defendants' counsel made response to the notice to produce, and the court ruled that it was insufficient, whereupon counsel for defendants stated that their clients were absent; that they had relied in good faith upon the sufficiency of the response already made, — and requested that they be allowed until the following day to make further response. This the court declined to do, and ordered that further answer be made then and there. This counsel did, but the court ruled it still insufficient, and, on their failure to respond further, directed, on motion of plaintiff's counsel, that judgment by default be entered against the defendants. It will be observed that the statute says for failure to comply with such "order" the court shall enter judgment, etc. The court has no power to enter a judgment by default against a defendant because he does not comply with the notice of the plaintiff to produce. It is for the court to say...
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