Nixon v. Clear Creek Lumber Co.

• Decision Date: 14 February 1907
• Citation: 43 So. 805,150 Ala. 602
• Parties: NIXON v. CLEAR CREEK LUMBER CO.
• Court: Alabama Supreme Court

43 So. 805

150 Ala. 602

NIXON v. CLEAR CREEK LUMBER CO.

Supreme Court of Alabama

February 14, 1907

Rehearing Denied May 6, 1907.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Bill by Robert Nixon against the Clear Creek Lumber Company. From a decree for defendant, complainant appeals. Reversed and remanded.

J. M Chilton, for appellant.

W. F Thetford, Jr., for appellee.

SIMPSON J.

The bill in this case was for a discovery, and for the injunctions of certain judgments, until the amount of complainant's set-off could be ascertained and applied against said judgments. The bill is filed by appellant (complainant) against appellee (defendant), and alleges that said defendant had obtained certain judgments against the complainant, which were based on the fact that the firm of Robert Nixon & Co. had taken up certain logs of the defendant, which were adrift in the river; that said defendant was also indebted to complainant on account of logs of complainant's, which were also adrift and had been taken up by defendant, and also by a judgment in the magistrate's court, but that said defendant had brought suit against complainant individually, in place of against the firm, and in the actions of detinue and trover, for the express purpose of preventing complainant from pleading as set-offs the amounts due by defendants to said firm of Robert Nixon & Co., although said firm had offered to enter into an accounting and duly account for such logs as it had taken up and was solvent and able to respond. The bill also alleges that the firm of Robert Nixon & Co. has been unable to discover or ascertain how many of its logs were taken by said defendant, although it has made diligent efforts to secure said information, and has in vain tried to induce the defendant to enter into an accounting, in which each should account for such logs as it has taken up. It is also alleged that before the filing of this bill said account and judgment of said firm of Robert Nixon & Co. have been assigned to complainant, and are now his property, and he offers the same as set-offs to said judgments held by defendant against them.

The able opinion of the judge of the city court of Montgomery, in equity, gives an interesting history of the doctrine of bills of discovery in equity, and reaches the conclusion that inasmuch as this jurisdiction was originally assumed because of the inadequacy of the powers of courts of law, yet that, since the statutes have provided for the examination of parties, the effect has been to take away from courts of equity its ancient jurisdiction in that matter. In this conclusion we are not able to concur. It is a principle that has passed into an axiom of our laws that, when certain matters have been within the jurisdiction of courts of equity, subsequent statutes conferring like jurisdiction upon courts of law are merely cumulative, and do not deprive the chancery court of its original jurisdiction, unless the statute specifically does so. It is true, however, that upon this particular point there is a sharp conflict in the decisions of other states. Mr. Pomeroy, in his work on Equity Jurisprudence, states that where Codes of Civil Procedure have been adopted, by which the distinction between proceedings at law and in equity has been abolished, the method of equitable discovery has been "practically" destroyed; but he goes on to state that in states where separate tribunals of law and of equity are preserved "it has generally been held that the Legislature has not abridged nor affected the auxiliary equitable jurisdiction to entertain suits for mere discovery of evidence and production of documents, and that such equitable jurisdiction still exists where not expressly abolished by the statutes." 1 Pomeroy's Eq. Jur. (1st Ed.) pp. 185, 186, § 193. He goes on to state that this conclusion is not universal. He states in a subsequent section that "a suit for discovery will be maintained in aid of another cause in equity, * * * or proceedings in any common-law court of general jurisdiction, * * * which is, or was by its original modes of procedure, unable to compel the needed disclosure." Page 188, § 196. In section 230 the learned author is discussing only the principle that, when a court of equity has taken original jurisdiction for discovery in regard to a purely legal controversy, it will proceed to do complete justice by deciding the entire case; and he argues against the rule, as it existed both in this country and England, intimating that there never was any reason why the case should not have been left to the court of law to decide after the discovery had been accomplished, and finally expresses an opinion that "this particular doctrine" has been swept away by statutory enactments, and he is particular in his note to make it clear that his remarks are only as to this particular doctrine. 1 Pomeroy's Eq. Jur. §§ 223, 230, and note on page 238.

Without expressing any opinion as to whether, even as to this particular doctrine, the learned author is as logical as he usually is, our own court has held the opposite view, as will be seen by authorities hereafter cited. As heretofore remarked, the cases in other jurisdictions are in conflict and can be seen by reference to 16 Century Digest, under the title "Discovery,"§ 4, to 14 Cyc. p. 309, and to a note to Cargill v. Kountze Bros., 24 L. R. A. 183. But we think the best-considered cases, as well as the reason of the law, sustain the proposition that the statutory provisions do not interfere with the equitable jurisdiction in matters of discovery, unless it is so specially provided in the statute. Howell v. Ashmore, 9 N. J. Eq. 82, 93, 94, 57 Am. Dec. 371; Shotwell's Adm'x v. Smith, 20 N. J. Eq. 79; Miller v. U.S. Casualty Co., 61 N. J. Eq. 110, 116, 117, 47 A. 509. In our own state, in addition to the general statute making parties witnesses, section 1850 of the Code of 1896 provides (as did previous Codes) for filing interrogatories to the opposing party, and section 1859 (enacted December, 1894) provides for requiring the parties to produce books or writings in their possession or power. This general subject came before our court in 1872, and the court said: "We do not think that, because our present law of...