Realty Const. Co. v. Freeman
| Decision Date | 13 April 1932 |
| Docket Number | 8672. |
| Citation | 163 S.E. 732,174 Ga. 657 |
| Parties | REALTY CONST. CO. v. FREEMAN et al. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Before depositions can be taken under statute, there must be joinder of issue or pleadings must raise some issue (Civ. Code 1910 § 5910).
Evidence offered must correspond with allegations and be confined to point in issue, and is irrelevant unless touching upon issue made by pleadings.
Failure to respond to subp nas requiring defendants to appear to have depositions taken held not contempt, where issue was not joined at time (Civ. Code 1910, §§ 5910, 5914, 6317).
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Proceeding by Realty Construction Company against Y. F. Freeman and others, to attach defendants for contempt of court. Judgment for defendants, and plaintiff brings error.
Affirmed.
Neely & Marshall, of Atlanta, for plaintiff in error.
Knight Adair, Cooper & Osborne, of Jacksonville, Fla., and Jones, Evins, Powers & Jones, of Atlanta, for defendant in error.
Syllabus OPINION.
On July 13, 1931, Realty Construction Company filed in Fulton superior court its petition against S. A. Lynch Enterprise Finance Corporation, S. A. Lynch, Y. F. Freeman, and C. T Holcomb, in which the plaintiff sought certain equitable relief. All the defendants, except S. A. Lynch, were personally served with copies of the petition and process on July 13, 1931. Lynch was not served until September 11, 1931. On July 16, 1931, plaintiff served notice upon all defendants, except Lynch, that the depositions of the defendants Freeman and Holcomb, as witnesses in its behalf, would be taken on July 21, 1931, before a commissioner appointed to take depositions under the provisions of section 5910 of the Civil Code of 1910. On the same day the plaintiff caused a notice to be served upon the defendants, except Lynch, calling upon them to produce before said commissioner, on July 21, 1931, certain documentary evidence for use upon the taking of the depositions of said defendants. On July 16, 1931, the commissioner issued subp nas, which were served on Freeman and Holcomb, requiring them to appear before him on said date for the purpose of enabling plaintiff to take their depositions in its behalf. On the date set for the taking of these depositions and the production of said documentary evidence, Freeman and Holcomb specially appeared by their counsel, and moved to vacate the notice to take these depositions, upon the ground that the same was premature because there was no provision of law for taking depositions prior to the filing or time for filing of the defendants' pleas. The commissioner overruled the motion to vacate. Said defendants failed and refused to respond to said notice to produce served on them. Upon their refusal to appear and testify before the commissioner, and upon their refusal to respond to said notice to produce, the commissioner, on July 21, 1931, certified such facts to the judges of Fulton superior court. Thereupon the plaintiff filed its petition in which it set out the foregoing facts, and prayed that said defendants be attached for contempt of court for refusing to appear before the commissioner and for failing to produce before him said documentary evidence. The court issued a rule nisi, calling upon them to show cause why they should not be adjudged in contempt. The defendants filed their response to the rule nisi, in which they admitted the facts, but set up that they failed to respond to the subp nas and the notice to produce because the same were premature, in that there was no provision of law for the taking of depositions of witnesses and for the production of documentary evidence prior to issue joined, for which reason the issuing of said subp nas and the service of said notice to produce were without authority of...
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