Netter v. Stoeckle

• Decision Date: 29 May 1903
• Citation: 20 Del. 345,56 A. 604
• Court: Delaware Superior Court
• Parties: SELIGMAN NETTER, trading as NETTER BROTHERS, p. b. a., v. HARRY J. STOECKLE, Manager, garnishee of SARAH NESTOR, d. b. r

56 A. 604

20 Del. 345

SELIGMAN NETTER, trading as NETTER BROTHERS, p. b. a., v. HARRY J. STOECKLE, Manager, garnishee of SARAH NESTOR, d. b. r

Superior Court of Delaware, New Castle County

May 29, 1903

Superior Court, New Castle County, May Term, 1903.

APPEAL from a Justice of the Peace, in and for New Castle County (No. 51, February Term, 1902). Plea of nulla bona.

On May 26th, counsel for plaintiff stated that the above case had been continued from the February Term to the May Term of court, and in the meantime there had been a change in counsel; that the same affidavit and notice which had been originally prepared to be served upon defendant's counsel at the February Term for the production of certain papers had been served upon Mr. Hayes at this term, and the application was upon said affidavit for the production of the same papers.

Hayes for defendant, objected to the affidavit on the ground that it was made on the eighth day of February, 1903, and that the papers were then in the possession of the defendant, but that there was no allegation that the papers are now in the possession of the defendant. The statute says that the court will order the production of the papers only under circumstances where they would be ordered in a case pending in a Court of Chancery. Under such an affidavit the papers would not be ordered to be produced in a case pending before the Chancellor, because the affiant could not make affidavit that they contained evidence pertinent to the issue if the contents are unknown to him.

Verdict for defendant.

T. Bayard Heisel for plaintiff below, appellant.

Walter H. Hayes for defendant below, respondent.

LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

LORE, C. J.

Without passing upon any other point, we think that in order to make an order of this kind, the affidavit ought to aver that the papers are now in the possession or control of the defendant. An allegation that they were in possession or control of the defendant last February would not justify the Court in making an order that he should produce them now. You must lay the grounds under the statute by stating that at the time the application is made they are in possession or control of the defendant. We do not think this affidavit meets the requirements of the statute.

(On May 28th, counsel for plaintiff presented in Court an amended affidavit, conforming to the above ruling. Thereupon the Court made the following order):

And now, to wit, this 28th day of May, A. D. 1903, upon motion of counsel for plaintiff in the within cause, it is ordered by the Court that the defendant produce at the office of the Prothonotary of this Court on Thursday, the 28th day of May, A. D. 1903, at 2 o'clock P. M., for examination by the plaintiff or his counsel, the checks therein mentioned; and it is further ordered that said defendant produce said checks at the trial of said cause; or show cause, if any he has, why this order should not be complied with.

CHAS. B. LORE, C. J.

Mr. Hayes:--If the Court will order a rule in this case, I will accept service. I merely wish to keep the practice as heretofore.

Curry vs. Charles Warner Company, 16 Del. 98, 2 Marvel 98, 42 A. 425; Thomas vs. Grand Trunk Railway, 17 Del. 593, 1 Penne. 593, 42 A. 987.

The notice is to compel the production of the papers, and we have no opportunity to contradict it. It merely says that these papers contain evidence pertinent to the issue. The reason for issuing the rule is to let the person show on the hearing of the rule, that they do not contain such evidence.

LORE C. J.:--

The whole purpose of the rule to show cause is disposed of by the notice under the statute. Issuing the rule would simply be a dilatory proceeding. There may have been some peculiar circumstances under which the rule has been issued, but under the statute the proper practice is to make the order upon the presentation of the affidavit and the service of the notice.

In the case of Thomas and Wife vs. Pennsylvania Railroad, 18 Del. 411, 2 Penne. 411, 47 A. 380, the Court ordered, upon a similar application, the production of certain books and papers, and there was no rule to show cause, according to the report of that case; nor is such a rule shown from the examination of the...