Pennsylvania R. Co. v. International Coal Min Co.

• Decision Date: 13 November 1907
• Docket Number: 14.
• Citation: 156 F. 765
• Parties: PENNSYLVANIA R. CO. v. INTERNATIONAL COAL MINING CO.
• Court: U.S. Court of Appeals — Third Circuit

156 F. 765

PENNSYLVANIA R. CO. v. INTERNATIONAL COAL MINING CO.

No. 14.

United States Court of Appeals, Third Circuit.

November 13, 1907

Francis I. Gowen, for plaintiff in error.

J. W M. Newlin, for defendant in error.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

GRAY Circuit Judge.

The International Coal Mining Company, the defendant in error hereinafter called the plaintiff, brought its action in the court below against the Pennsylvania Railroad Company, the plaintiff in error, hereinafter called the defendant, under the interstate commerce act, to recover damages against the defendant, for its alleged violation of certain provisions of that act, by discriminating against the plaintiff in the allowance of freight rates upon coal.

To the statement of claim filed by plaintiff, defendant pleaded the general issue of 'not guilty,' the statute of limitations, and a special plea, which set up a judicial sale under a special fi.fa., issued in execution of a judgment rendered by a court of common pleas of the state of Pennsylvania, against the said plaintiff, the defendant in said judgment, it being alleged that, by virtue of said sale the right of action under the interstate commerce act, as alleged in the case at bar, was sold, and plaintiff's title thereto divested, and that that fact was a bar to the further prosecution by the plaintiff of its suit. To this special plea, the plaintiff filed several replications, to which the defendant demurred. These demurrers were overruled and, after an intervening continuance of the cause, and at that stage of the suit, upon the petition of plaintiff's attorney, the following order was made by the court below:

'And now, January 30, 1907, on the filing of the affidavit of J. Chester Wilson, secretary of the plaintiff and International Coal Mining Company, and on motion of James W. M. Newlin, attorney for the plaintiff, and for Edward D. McLaughlin, Esq., trustee in bankruptcy for plaintiff as an intervener, the court grants a rule on the defendant to show cause why it should not be required to produce on the trial of this cause the papers and writings specified in said affidavit or to satisfy the court why it is not in its power to do so, returnable February 13, 1907, at 10 a.m.'

On the return day of the rule, the defendant made answer, suggesting, first, that the plaintiff was not entitled to the orders sought by it, because of the facts averred and set forth in the special plea filed by the defendant, and, second, that no warrant existed under the statutes of the United States for the making of any such order as was sought by the plaintiff in an action of the character of the present one, being an action to recover damages in the nature of penalties. On March 25, 1907, the court below filed an opinion, in which the objections urged in the defendant's answer were overruled, and, asserting the right of the court to make the order, as asked for by the plaintiff, it was said:

'The plaintiff in this case is entitled to the production of such books and papers as are relevant and pertinent to the issues involved; but the court will not make the rule absolute, as the question of the relevancy of whatever books and papers are called for must be passed upon at the trial. It is ordered, therefore, that the defendant be required to produce the books and papers specified in the petition, at the trial of the cause, unless it shows cause at the trial why the same should not be produced.' On April 3, 1907, the court below filed the following opinion and order:

'On March 25, 1907, an order was made on the defendant in this case, to produce books and papers at the trial of the case. A petition had been presented, under section 724 of Revised Statutes (U.S. Comp. St. 1901, p. 583), by the plaintiff for the production of books and papers. The defendant made answer, with other matters, that the action being one for the recovery of damages, in the nature of a penalty under the interstate commerce act, the motion should be denied. The order to produce was not made absolute, but the question of requiring the production was left open for settlement at the trial. In this, I think the order was not in proper form. It was the intention of the court to require the production of the books, for the reason that the action is not for a penalty in a sense to exempt the defendant from the production of books in an action of this kind, and even if it be regarded as a suit for the recovery of damages as a penalty, or in the nature of a penalty, the defendant, being a corporation, is not entitled to the privilege of refusing to produce its books and papers in a suit of this kind. Hale v. Henkel, 201 U.S. 43, 26 Sup.Ct. 370, 50 L.Ed. 652; Nelson v. U.S., 201 U.S. 92, 26 Sup.Ct. 358, 50 L.Ed. 673.

'And now, April 2, 1907, on motion of James W. M. Newlin, for the plaintiff, and the answer, filed by the defendant to the rule returnable February 13, 1907, on the defendant to show cause why it should not produce upon the trial the documentary evidence set forth in the affidavit of J. Chester Wilson, the secretary of the plaintiff, upon which the rule to show cause was granted, having been determined by the court to be insufficient, it is ordered that the defendant shall produce the said documentary evidence at the trial of the cause, and the rule to show cause is made absolute.'

Thereupon, April 4, 1907, the defendant filed his petition for a writ of error, which being allowed by the court below, the following assignments of error were duly filed:

'First. The Circuit Court erred in entering the order of March 25th, requiring the plaintiff in error to produce at the trial of the cause the books and papers referred to in said order.

'Second. The Circuit Court erred in entering the order of April 3d, requiring the plaintiff in error to produce at the trial of the cause the books and papers referred to in said order.'

The return to the writ of error so sued out, brings before this court the record of the case, as far as it had proceeded in the court below, terminating with the order above referred to, of April 3, 1907, 'that the defendant shall produce the said documentary evidence at the trial of the cause.'

Prior to the argument on the assignments of error, the defendant in error, by its counsel, moved this court to dismiss the writ of error for want of jurisdiction, on the ground that the orders complained of in said assignments of error are interlocutory orders of the...