Lester v. People

• Citation: 150 Ill. 408,23 N.E. 387
• Parties: LESTER v. PEOPLE.
• Decision Date: 21 January 1890
• Court: Supreme Court of Illinois

150 Ill. 408

23 N.E. 387

LESTER

v.PEOPLE.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from circuit court, Cook county.

Proceedings to punish John T. Lester for contempt in not obeying an order of the circuit court. Defendant appeals.

John S. Cook and John N. Jewett, for appellant.

Thomas J. Sutherland, for appellee.

SHOPE, C. J.

In the original suit of Berkowitz against Lester et al., out of which this controversy arises, the circuit court made an order upon the defendants to place books in which the business transactions of the defendants with the plaintiff and other persons were entered in the possession of the clerk of the court, that they might be inspected by the plaintiff and his attorney, in order that they might prepare for the trial of said cause. Before any proceedings were taken in execution of that order, the defendants brought the case to this court by writ of error for the purpose of having that order of the circuit court reversed. We then dismissed the writ of error upon the sole ground that the order was not a final judgment, reviewable upon appeal or error. In delivering its opinion in that case this court said: ‘It was the privilege of defendants either to obey the order or stand in defiance of the power of the court. Had the court attempted to enforce obedience to its order by the imposition of a fine, * * * with an order for an execution, or by a definitive term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment would be final, and from which an appeal might be taken, or to which a writ of error would lie. That would conform exactly with the rule stated by this court in Blake's Case, 80 Ill. 523. On the reviewing of such a judgment of the court, that might deprive defendants either of their property or of their liberty, the propriety of the preliminary or interlocutory order could be considered, otherwise not.’ Lester v. Berkowitz, 125 Ill. 307, 17 N. E. Rep. 706. After this decision the circuit court attached the defendants for contempt for refusing to obey said order, and imposed a fine of $200 upon the defendant Lester, and ordered that he stand committed until the fine and costs of the proceeding were paid, thus bringing the case within the rule there announced, and making the case in which an appeal will lie.

As a general rule mere errors in making interlocutory orders will furnish no justification for refusing to obey the same where they do not subject the party to the payment of money or imprisonment. If the party against whom such order is made wishes to contest the validity or propriety of the order, he may refuse to obey, and in the further proceeding for contempt he may show in defense that the court had no authority to make the order, and if his defense is disallowed, and judgmentis entered against him for a sum of money, by way of fine, enforceable by execution or imprisonment, an appeal in his favor will lie. At common law, in suits upon sealed instruments, of which it was necessary to make profert, the defendant might demand oyer, and thereby have an inspection of the instrument sued upon. This was limited to contracts or other instruments under seal, and technically known as ‘deeds.’ By section 20, c. 110, of our statute, relating to practice, this rule is extended to all instruments declared on, whether under seal or not. It reads: ‘It shall not be necessary in any pleading to make profert of the instrument alleged; but in any action or defense upon an instrument in writing, whether under seal or not, if the same is not lost or destroyed, the opposite party may have oyer thereof, and proceed thereon in the same manner as if profert had been properly made according to the common law.’ And it was held under this statute that the court might compel the production of the original instrument sued on. Mason v. Buckmaster, Breese, 27. Oyer or inspection is confined to instruments in writing declared upon, and constituting the cause of action, or set up in a plea by way of defense. It does not apply when the deed is stated as mere inducment. The common law also furnished another mode which was not confined to instruments under seal. This was by application, pending the action, to the equitable jurisdiction of the court for an order to inspect. Poll. Prod. Doc. 1. The order for inspection was obtainable ‘only in a very limited number of cases; as where one party could be considered as holding a document as agent or trustee of the party seeking inspection, or where the applicant was a party to a written contract of which but one part is executed, or where one part had been lost or destroyed; and it was also in general considered necessary that the party applying should be a party to the instrument which he sought to inspect, and although a trial was sometimes postponed for the purpose of enabling a party to take proceedings in equity, yet, whenever an application to the court of law was in the nature of a bill for discovery, they invariably refused to grant inspection.’ Id. It is claimed, however, that the order for the production and inspection of the defendant's books is authorized by the statute relating to evidence, (Rev. St. § 9, c. 51,) which provides that ‘the several courts shall have power, in any action pending before them upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.’ The evident purpose and design of this statute was to furnish to a party litigant a speedy and summary mode by which, under the order of the court, to obtain written evidence pertinent to the issue which might be in the possession and control of his adversary, and thus obviate the necessity of a bill of discovery seeking the same end. It is manifest that it contemplates the production of evidence on the trial of the cause, which the party applying therefor is entitled to introduce in support of his case, and which the other party witholds. It is only such books or writings as contain evidence pertinent to the issue, that are required to be produced, and it is for the purpose of enabling the party demanding their production to introduce such pertinent matter in evidence on the trial. A defendant is not required to disclose matters of evidence relied upon in the defense, and thus inform the plaintiff of his case further than the pleadings show. Matters purely of defense are the property rights of the defendant, which he may disclose or not upon the trial. 2 Phil. Ev. 330; ...