Ryder v. Bateman

• Decision Date: 03 October 1898
• Citation: 93 F. 31
• Parties: RYDER et al. v. BATEMAN et ux.
• Court: U.S. District Court — Western District of Tennessee

93 F. 31

RYDER et al. v. BATEMAN et ux.

United States Circuit Court, W.D. Tennessee.

October 3, 1898

L. T M. Canada, for plaintiffs.

Edgington & Edgington, for defendants.

HAMMOND J.

This is an application by the defendants, upon a sworn petition, to have the plaintiffs produce and file with the clerk for their inspection a certain deed mentioned by the plaintiffs in their bill as 'Exhibit D' thereto, or else have an order enlarging the time of the defendants to file their answer until a given time after the plaintiffs shall have filed the original of the said deed with the clerk for that purpose. The bill makes a copy of the original deed an exhibit to the bill, but it is stated in this petition that the plaintiff Iris C. Ryder has repeatedly refused to permit the defendants to see the original. The defendants say, in their sworn petition, 'that the said deed is a forgery and that no such deed was ever made by the said defendant Marie. ' Again, they say, 'Respondent Marie has no recollection or knowledge of the execution, signing, or acknowledgment of the document sued on, and, if the signature to the same should prove to be her genuine signature, then it was obtained by fraud. ' The defendants further say in their petition that the deed purports to have been acknowledged in Los Angeles county, Cal., before a notary public, and they believe that this acknowledgment is also a forgery, and do not believe that it is the genuine signature and seal of the notary public attached to said deed: and, if it be so attached, that it is a forgery. The defendants say also, in the petition, that they will not be enabled to answer the bill intelligently without an inspection of this paper, to the end 'that they shall have proper facilities to prepare the evidence for the defense of this case. ' And they ask to have all further proceedings stayed until they have secured an inspection of the original document. It also appears by the statements of counsel and by the record that the plaintiffs have moved for the appointment of a receiver for the considerable quantity of real estate involved in the controversy; and the defendants, before the hearing of the motion for a receiver, desire to file their answer to the bill, and this they cannot do until they have inspected the plaintiffs' exhibit. For this reason there has been considerable urgency about this application.

The plaintiff Iris C. Ryder has filed an answer to this petition of the defendants, also sworn to, denying that the deed is a forgery and stating that on or before the hearing of this cause she will produce the paper, and establish its genuineness: that she has made a copy of the paper an exhibit to her bill; and states in the bill that on or before the hearing she will produce the paper, or a certified copy thereof, as legal evidence. She states that the petition is filed only for delay; that the defendants are totally insolvent, and are squandering the rents of the property; and that the defendant Louis Bateman is an unscrupulous man, not to be trusted with papers; and asks to have the motion for the receiver heard without further delay.

This application must be denied. It is a great mistake to suppose that parties to a litigation have a promiscuous right to the production and inspection of the papers and documents in the possession of their adversary. A loose practice has grown up on this subject, and there is generally a good deal of complaisance on the part of counsel and the parties to the suit in the production of papers; but whenever the practice has been challenged it has been found that there are limitations to the right, which it is necessary that the courts should safely guard in order to secure the citizen against an invasion of his right to hold and keep his papers from unlawful or impertinent inspection. Even litigants who expect to use their papers in evidence are not required to produce them for the information of the other side, except under strictly guarded rules of practice that are intended to secure the protection of this right. Mr. Justice Bradley, in the case of Boyd v. U.S., 116 U.S. 616, 6 Sup.Ct. 524, denounces the practice of invading this right under the forms of law by judicial process, and shows how it is guarded in criminal procedure by a constitutional provision; which was also enforced in the case of Potter v. Beal, 2 C.C.A. 60, 50 F. 860, by annulling an order that had been granted for the inspection of papers in a criminal case. There is, perhaps, no constitutional provision to protect the citizen against seizures and searches in civil suits, as in criminal cases, but it will be found, nevertheless, that the courts carefully avoid any unlawful violation of the citizen's right in respect of this protection. Railroad Co. v. Botsford, 141 U.S. 250, 254, 11 Sup.Ct. 1000.

Lord Chancellor Selborne remarks, in Minet v. Morgan, 8 Ch.App. 361, 364, that 'there might, perhaps, be great reason for holding that, if a man comes into court as plaintiff, attacking somebody else, he ought to be bound to disclose everything on which he relies for the purpose of his attack. But undoubtedly that is not the present rule of the court'; wherefore it is required that we shall determine under just what circumstances the parties have the right to compel each other to produce documents for the inspection or use of the adversary in the litigation.

Counsel, in their brief, refer to the judiciary act of 1789 (1 Stat. 82, c. 20, Sec. 15), which is now Rev. St. Sec. 724, as furnishing authority on the part of the court to make this order. But it will be seen that this act is confined to actions at law, and does not at all apply to courts of equity. The only purpose and effect of that act is to give courts of law the power to do what courts of equity may do in the matter of producing documents without the formality of going into a court of equity with a bill of discovery in aid of an action at law. Story, Eq. Pl. p. 106, Sec. 555, note; Railway Co. v. Botsford, supra. Mr. Justice Bradley, in Boyd v. U.S., supra, refers to this statute, and praises the wisdom of congress in strictly limiting the right of production to 'cases and under circumstances where the parties might be compelled to produce books and writings by the ordinary rules of proceeding in chancery. ' He says: 'The court of chancery had for generations been weighing and balancing the rules to be observed in granting discovery on bills filed for that purpose, in the endeavor to fix upon such as would best secure the ends of justice. To go beyond the point to which that court had gone may well have been hazardous.' 116 U.S. 631, 6 Sup.Ct. 533. It will thus be seen that the supreme court of the United States, by this interpretation, limits the power of courts of law, under this act of congress, to precisely the power that courts of equity have to compel the production of documents. And it becomes, therefore, all the more important to determine how courts of equity proceed in the exercise of their power to subserve the ends of justice, and at the same time protect the litigant against unlawful compulsion in the matter of the production of his evidence to the inspection of his adversary.

There has been in recent years, by legislation in parliament in England and in the legislatures of the states, a very decided reform in the matter of procedure, the purpose being to avoid the cost and expense of bills of discovery to compel the production of documents which, under the rules governing courts of equity, should be produced, by authorizing all courts to compel the production upon motion made by the parties, without the formality of bills of discovery. An example of this legislation will be found in St. 15 & 16 Vict.c. 18, Sec. 20, which allowed the parties after answer, under certain circumstances, to secure the production of documents by petition; and by more recent legislation in England, and by orders of court, the practice has been entirely changed, and the production is enforced upon a proceeding by affidavit. Another example is found in the New Jersey equity rule 31, that being a state where equity practice is still preserved in its original form and purity to a great extent. That rule allows the inspection to be had without a bill of discovery, and upon motion. Dick. Eq. Prec. 151, 208. But it is to be observed that in all this legislation the courts are careful, while changing the methods of procedure, not to change the fundamental principles which govern the exercise of the right of compelling the production of documents; no doubt actuated by the same wisdom which Mr. Justice Bradley attributes to congress in conferring this enlarged power upon the federal courts in actions at law. Congress has not yet chosen to change the method of procedure in the federal courts of equity, and the very fact that Rev. St. Sec. 724, is confined to courts of law, is conclusive that the courts of equity must proceed as they did and do without the aid of that statute. We are governed by the general equity rules prescribed by the supreme court of the United States, and, where they do not apply, by the practice of the high court of chancery in England at the time of the promulgation of those rules, in 1842. Equity rule 90; Bein v. Heath, 12 How. 163, 178; Betts v. Lewis, 19 How. 72. It will be found that that elaborate system of rules was largely intended to settle many disputed questions of chancery practice, but unfortunately they did not take up this question of the production of documents, and there is no rule governing the practice. We must find the correct practice from other sources, as also the particular circumstances entitling the parties to the production of documents as against each other.

Mr Justice Bra...