Neafie v. Miller

• Decision Date: 17 March 1896
• Citation: 20 So. 252,37 Fla. 173
• Parties: NEAFIE et al. v. MILLER et al.
• Court: Florida Supreme Court

20 So. 252

37 Fla. 173

NEAFIE et al. v. MILLER et al.

Florida Supreme Court

March 17, 1896

Appeal from circuit court, Hillsborough county; G. A. Hanson, Judge.

Action by Neafie & Levy against Miller & Henderson. From a judgment dismissing the bill on plaintiffs' refusal to comply with an order compelling the discovery of certain of their books and documents, plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. Rule 58 for the government of the circuit courts in common-law actions, making provision to compel the discovery and production of books, papers, and documents in the possession or under the control of a party that may be necessary to enable the other party to frame his reply or answer to any pleading of his adversary, was adopted here from the rules of practice of the supreme court of the state of New York. When invoked, the application for discovery under it must specially state what information is wanted, and that the books or papers referred to contain such entries; and this must be stated upon positive affirmation, and not on mere information and belief. The rule was never designed to allow parties to fish for evidence in the private books of account or documents of others. A discovery under this rule may be ordered to assist the defendant to facts without which he cannot frame a pleading that will protect his rights in the action itself, but the object for which discovery will be ordered under it is not to prevent a defendant from pleading untruthfully, or to inform him how fully he may have furnished the plaintiff with the means of disproving the pleading that he proposes to interpose. Applications under the rule should not be granted when it is manifest upon the face of the application itself that the defendant has no defense that he cannot set up in due legal form to raise the proper issues, without the aid of the papers sought for. In applications of this kind the applicant must show how or why it is necessary to have the discovery in order to prepare or formulate his pleading. The bare fact that a defendant's own books have been destroyed that contained his entries of his side of transactions with the plaintiff will not authorize the invocation of the rule.

2. Whenever a proper case is presented for the enforcement of this rule, and the party against whom it is invoked, together with his books or the documents sought, are in another state or at such a distance that a production of them in court would be attended with great expense, inconvenience, or detriment, the judge should never require the production of the originals, where sworn copies of the pertinent matters therein would fully subserve the purposes and objects of the rule.

3. Where the party against whom this rule has been invoked fails or refuses to comply with the order for discovery and production of his books or papers, the clerk of the circuit court has no authority to visit such failure or refusal with the entry of a judgment of dismissal of the plaintiff's case and for costs.

COUNSEL

Phillips & Carter, for appellants.

Sparkman & Sparkman, for appellees.

OPINION

TAYLOR J.

The appellants, as plaintiffs below, citizens of Philadelphia Pa., sued the appellees, citizens of Tampa, Fla., in assumpsit upon an account for work and labor done and performed, and materials for the same furnished, for the defendants, and for moneys paid, laid out, and expended for the use of the defendants, and upon account stated; the declaration containing the usual money counts. Attached to the declaration was a copy of the itemized account sued upon.

Before pleading, the defendants, after notice to the plaintiffs, presented their petition to the circuit judge, alleging that the suit was based upon transactions which they had with the plaintiffs, who reside in the city of Philadelphia, state of Pennsylvania, during the period from February 9, 1879, to May 12, 1887, a period of more than eight years; that sometimes their transactions were had with one member of the plaintiff firm, and at other times with another of its members; that they are not really indebted to the said plaintiffs in any sum, but, owing to the fact that petitioners' books of account with said plaintiffs were destroyed by fire a few years ago, they are without the necessary data to prepare a proper defense to said suit; that not only do your petitioners owe the plaintiffs nothing, but they are satisfied the plaintiffs are largely indebted to the, but, on account of the destruction of their books, as aforesaid, they are unable to show the same by appropriate pleading, unless they are permitted to see and examine the books of plaintiffs in which are the items and all the transactions between the plaintiffs and defendants, and upon which said suit is based. The petition prayed the court for an order compelling the plaintiffs to discover and produce any and all books and other papers or documents bearing record of the transactions upon which said suit is based, or any of such transactions, as well as all books or documents which may be necessary to enable the defendants to make their reply or answer to said declaration, in order that the defendants might be able to make such reply or answer. The petition was verified by the affidavit of one of the defendant firm, in which he swore that the books, papers, and documents whereof discovery is sought by the petition are under the control or in the possession of said plaintiffs, or some of them, and that he is advised by his counsel, and verily believes, that the discovery of the books, papers, and documents mentioned in said petition is necessary to enable him to draw his answer or reply to the said plaintiffs' declaration.

Upon this petition the circuit judge made an order requiring the plaintiffs, on or before the 7th day of April, 1890, to produce and deposit with the clerk of the circuit court in and for Hillsborough county, Fla., any and all books of account and other papers and documents bearing record of the transactions upon which the said suit is predicated, or any of said transactions, as well as all books and documents which may be necessary to enable the parties defendant to make their reply or answer to said declaration.

The plaintiffs afterwards presented their petition to the judge alleging that they were merchants in the city of Philadelphia, Pa., doing an extremely large business, and had been so doing for a great number of years; that the books of account in which the account of the defendants appears contain a large number of other accounts, extending over a period of eight or ten years; that said books are too valuable to them for the same to be sent out of their control or custody; that they are perfectly willing that any and every item of account on said books material to the defendants in making their defense to this action should be inspected by said defendants, and their said books are open and will be open at any and all times, to the inspection of the defendants, or any person competent to examine the same appointed by the defendants; that if the order granted by the court is not amended so that a compliance therewith can be made in some other way than by shipping said books to Tampa, Fla., they will practically be denied the right to bring any suit in this matter. Said petition prayed that said order be so modified that they could reasonably comply therewith. Upon this petition the judge made the following order: 'The court being of opinion that the right of the plaintiffs cannot abrogate the right of the defendants, and that this court cannot make or sanction any order requiring defendants to go beyond the jurisdiction of the court, while th...