P. & D. Mfg. Co., Inc. v. Barnes

• Decision Date: 04 May 1938
• Docket Number: No. 255.,255.
• Citation: 120 N.J.L. 229,199 A. 9
• Parties: P. & D. MFG. CO., Inc., v. BARNES.
• Court: New Jersey Supreme Court

199 A. 9

120 N.J.L. 229

P. & D. MFG. CO., Inc.,

v. BARNES.

No. 255.

Supreme Court of New Jersey.

May 4, 1938.

Attachment action for accounting of sales of manufactured devices under royalty agreement and of royalties due thereunder by Harold E. Barnes against the P. & D. Manufacturing Company, Inc. An order made by the circuit judge sitting as a Supreme Court commissioner, granted, prior to trial, permission to inspect and make copy of books, papers, and documents in defendant's possession relating to the plaintiff's complaint. On rule to show cause why a writ of certiorari should not issue and an alternative motion that the pleadings be moulded looking to the entry of final judgment from which an appeal can be properly taken.

Rule discharged and motion denied. Argued January term, 1938, before BODINE, HEHER, and PERSKIE, JJ.

Lionel P. Kristeller, of Newark (Saul J. Zucker, of Newark, of counsel), for the rule. Joseph J. Corn, of Newark, opposed.

HEHER, Justice.

The initial and fundamental point of inquiry is whether certiorari may be invoked to review an order made by Circuit Court Judge William A. Smith, sitting as a Supreme Court commissioner, granting to the plaintiff, prior to the trial of an issue joined in an action at law in this court, permission "to inspect and make a copy of the books, papers or documents in defendant's possession or under its control, relating to the second count of plaintiff's complaint." By that count, the plaintiff seeks a common-law accounting of the defendant's sales of manufactured devices and of money due under a royalty agreement between them.

The action was instituted under the Attachment Act of 1901, Rev.Stat.1937, 2:42-5, 1 Comp.St.1910, p. 133, § 1, and the order is assailed as in aid of a claim for "unliquidated damages not cognizable in a suit instituted by attachment," based upon "an oral contract unenforceable under the statute of frauds," and as having been entered without compliance "with the statutory provisions relating to inspection" and "the rules and practices of this Court." It is said that, "until respondent's rights under such alleged contract have been definitely fixed, respondent should not be permitted to pry into petitioner's confidential records."

Rule 94 of this court invests the circuit court judges, sitting as commissioners of this court, with authority to "make such order as the Court might make and as may be just, * * * subject to an appeal after final judgment," in relation, among other things, to "discovery of and inspection of books, papers and other documents." The jurisdiction of courts of law to grant such discovery, as a means of enforcing disclosure of facts within the adversary party's knowledge or possession to aid in the determination of the issue framed, is derived from sections 142 and 143 of the Practice Act of 1903. Rev.Stat.1937, 2:27-169, 2:27-170, 2:27-171, 3 Comp.St.1910, pp. 4048, 4098, §§ 142, 143. At common law, the adversary party in a jury trial was not compellable to be a witness (Wigmore on Evidence, 2d Ed., §§ 1847, 1856a, 2217); and discovery of evidence in aid of the prosecution or defense of a suit at law could only be had in equity. And so it is the insistence of petitioner herein—the defendant in the action at law—that, the order having been "made by the Circuit Judge in the exercise of a purely statutory power," the principle declared in Eder v. Hudson County Circuit Court, 104 N.J.L. 260, 140 A. 883, 884, governs.

But counsel plainly misconceives the limitation of that case. True, the holding was that certiorari will lie to review the exercise of a statutory power by a Supreme Court justice or a circuit court judge, "not according to the course of the common law." Yet, as was pointed out by Mr. Justice Kalisch, "the mere enlargement or extension of the judicial powers of the court does not make the exercise of such powers subject to review, by certiorari." Applying that principle to ...