General Film Co. v. Sampliner

• Decision Date: 04 April 1916
• Docket Number: 2752.
• Citation: 232 F. 95
• Parties: GENERAL FILM CO. v. SAMPLINER.
• Court: U.S. Court of Appeals — Sixth Circuit

232 F. 95

GENERAL FILM CO. v. SAMPLINER.

No. 2752.

United States Court of Appeals, Sixth Circuit.

April 4, 1916

Richard Inglis and Bulkley, Hauxhurst, Inglis & Saeger, all of Cleveland, Ohio (Caldwell, Masslich & Reed, of New York City of counsel), for appellant.

J. H Sampliner, of Cleveland, Ohio, pro se.

Before WARRINGTON and KNAPPEN, Circuit Judges, and SANFORD, District judge.

KNAPPEN Circuit Judge.

The appellee (whom we shall call plaintiff), claiming to be the assignee of the Lake Shore Film & Supply Company, brought suit at law against appellant in the court below for treble damages, alleged to have accrued to the Lake Shore Company under the Sherman Anti-Trust Act (Act July 2, 1890, c. 647 26 Stat. 209 (Comp. St. 1913, Secs. 8820-8830)) by reason of an alleged conspiracy to monopolize the motion-picture business of the United States and to restrict trade and commerce therein between the several states, and for other alleged unlawful and injurious acts.

The petition in the suit at law alleged that, on or about a date named, plaintiff 'became the owner by assignment, of all the right, title and interest of the Lake Shore Film & Supply Company * * * in and to all its claim for damages by it sustained, by reason of the violation of' the federal act referred to, 'by the various parties hereinafter specifically mentioned. ' Appellant answered the petition specifically denying the alleged assignment to plaintiff. Later, appellant filed its bill in equity in the same court setting up the suit at law, including the claimed assignment to plaintiff and its denial thereof. The bill further alleged on information and belief that the Lake Shore Company had 'never assigned by proper, legal and binding corporate action, any such alleged cause of action, * * * ' appellant stating as the source, among others, 'of its information and ground of its belief,' certain testimony given in advance of the trial of the action at law by an officer and director of the Lake Shore Company at the date of the alleged assignment. It also alleged the request of appellant for an inspection of the assignment 'to ascertain whether or not the same was duly made,' and plaintiff's refusal to exhibit the assignment or a copy of it; also that appellant 'is desirous of examining said assignment and ascertaining its validity for the purpose of substantiating its defense against said action at law * * * and further to substantiate the position of your petitioner * * * that if said alleged cause of action was in form assigned to (plaintiff) the attempt to assign the same was champertous, and also that the (plaintiff) in such case, is not the real party in interest to bring any suit on said alleged cause of action. ' The bill also alleged inability to ascertain and prove the facts as to the alleged assignment without an inspection of the instrument, inability to obtain inspection except by bill of discovery, and possession by plaintiff of the assignment, and prayed that plaintiff 'be required to appear under oath and testify as to the form and manner of said alleged assignment, and if said alleged assignment is in writing, to permit the plaintiff (appellant) to inspect the same and take copies thereof.'

Appellee made a motion to dismiss the bill, presumably under general equity rule No. 29 (198 F. xxvi, 115 C.C.A. xxvi). The motion was sustained and the bill dismissed for the reasons, stated by the District Judge, that appellant had an undoubted right to compel production of the assignment at the trial, and that the proceeding in equity was clearly 'a fishing expedition upon the part of the defendant in the suit at law, for the purpose of procuring inspection of the assignment to Sampliner for the purpose of using it if it serves its purpose or of not using it if it proves unfavorable. ' The appeal is from this decree of dismissal.

The Ohio Statutes (G.C. Secs. 11551 and 11552) empower the court, in an action at law, to require a party to produce books and writings which contain evidence pertinent to the issues 'in cases and under circumstances where they might heretofore have been compelled to produce them by the ordinary rules of chancery,' and give either party the right to demand of his adversary an inspection and copy, or permission to take a copy, of a book, paper or document in the adversary's possession containing evidence relative to the merits of the action or defense. But state statutes of this nature are held inapplicable to the procedure in federal courts, either under section 721 of the Revised Statutes (Comp. St. 1913, Sec. 1538), which gives, with certain exceptions, to the laws of the several states the effect, in the courts of the United States, of rules of decision in trials at common law, or under the Conformity Act (section 914 (Comp. St. 1913, Sec. 1537)), and because of section 861 of the Revised Statutes (Comp. St. 1913, Sec. 1468), which provides that the mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, subject to certain exceptions which the instant case does not present. Ex parte Fisk, 113 U.S. 713, 5 Sup.Ct. 724, 28 L.Ed. 1117; Hanks Dental Ass'n v. International, etc., Co., 194 U.S. 303, 24 Sup.Ct. 700, 48 L.Ed. 989.

Section 724 of the Revised Statutes (Comp. St. 1913, Sec. 1469) empowers the courts of the United States 'in the trial of actions at law' to require the parties 'to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. ' But the words 'in the trial' have been authoritatively construed to mean 'on or at the trial,' and so not to authorize a requirement of such production 'before the trial.' Carpenter v. Winn, 221 U.S. 533, 538, et seq., 31 Sup.Ct. 683, 55 L.Ed. 842. In the latter case it was said by Mr. Justice Lurton (221 U.S. 539, 31 Sup.Ct. 685 (55 L.Ed. 842)) that procedure for discovery in chancery of evidence material to the maintenance or defense of an action at law 'is still open if it is desired to have the evidence produced before the trial. A court of equity does not lose its jurisdiction to entertain a bill for the discovery of evidence or to enjoin the trial at law until obtained, because the powers of the courts of law have been enlarged so as to make the equitable remedy unnecessary in some circumstances. ' While this statement was perhaps unnecessary to a decision of the question before the court, we should accept it as authoritative. It has been so accepted by other courts; ^[1] and the proposition receives support from Southern Pacific R.R. Co. v. United States, 200 U.S. 341, 351, 26 Sup.Ct. 296, 50 L.Ed. 507, as well as from the authorities cited in Carpenter v. Winn. The discovery obtainable by bill in equity is, of course, by answer. 1 Bates, Fed. Eq. Proc. Sec. 118.

The...