Samuels v. Finkelstein

• Decision Date: 06 March 1930
• Docket Number: No. 1896.,1896.
• Parties: SAMUELS v. FINKELSTEIN.
• Court: Texas Court of Appeals

25 S.W.2d 923

SAMUELS v. FINKELSTEIN.

No. 1896.

Court of Civil Appeals of Texas. Beaumont.

March 6, 1930.

Rehearing Denied March 12, 1930.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by William Finkelstein against Hyman Samuels. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Franklin & Blankenbecker, of Houston, for appellant.

A. B. Wilson, of Houston, for appellee.

WALKER, J.

In July, 1927, appellee filed against appellant in the Eightieth district court of Harris county a bill for relief and discovery, praying for an accounting between them. For cause of action he alleged that in 1916 he began shipping cotton to appellant as his broker and continued shipping appellant cotton every year until 1926. He alleged the amount of cotton and the date of the different shipments, but alleged further that he did not have the weights nor the grades nor the price at which appellant from time to time sold his cotton and had no means of acquiring this information except from appellant's books, and further that appellant had not furnished him this information and no settlement had ever been had between them. For the purpose of eliciting the desired information from appellant, he made certain interrogatories a part of his bill and prayed for an answer thereto and generally for an accounting. On the 14th of February, 1929, he filed in the Fifty-Fifth district court of Harris county a pure bill for discovery pleading the pendency and the date of the filing of his suit in the Eightieth district court. In this bill he pleaded in hæc verba his original bill, and further that appellant had refused to furnish him the desired information, though he had requested it. In pleading his original bill in this bill, he pleaded, as a part of the original bill, the interrogatories involved therein and as a part of this bill repleaded in hæc verba the same interrogatories as in his original bill. Immediately upon the filing of this bill, he presented the same to the Fifty-Fifth district court on an ex parte application, and secured an order from that court directing appellant to file on or before the 18th of March, 1929, in the Fifty-Fifth district court, his answer to the interrogatories as the same appeared in this bill and in the original bill. In due time appellant filed his motion to set aside this order on the ground that it was improperly entered on the ex parte application, and answering this bill specially pleaded that it was subject to general demurrer, and further that the identical cause of action was at that time pending in the Eightieth district court, and that in so far as the bill in the Eightieth district court prayed for a discovery appellee had been denied that relief by the district court. When advised that this motion and answer had been filed, the judge of the Fifty-Fifth district court suspended the original order and gave appellant a hearing on his motion and answer, but overruled the motion and denied the answer and entered a final order directing him "to file in this court at the earliest practicable date a full, true and complete answer to the said interrogatories propounded to him in the plaintiff's bill of discovery."

Opinion.

Under article 2002, Revised Civil Statutes 1925, reading as follows: "All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies," the jurisdiction of trial courts to entertain suits in the nature of bills of discovery cannot be questioned. Chapman v. Leaverton (Tex. Civ. App.) 263 S. W. 1083. But, under the provisions of this article, the court erred in granting, on the ex parte hearing, the absolute order commanding appellant to answer appellee's interrogatories. Appellant was entitled to notice and an opportunity to be heard before the order was made final. It is provided by this article that relief shall be granted "in accordance with the usages of courts of equity," As we understand this "usage," courts of equity require notice before making this order absolute. Suits in the nature of bills of discovery are suits in equity. Discussing the necessity for process in such suits, it is said in 21 C. J. 351: "Except where there is a voluntary general appearance, or it is otherwise waived, the issuance and service of formal process is essential to the acquisition of jurisdiction of the case." Farrington v. Stone, 35 Neb. 456, 53 N. W. 389, 390, was a creditor's bill for relief and discovery. While the action was pending, the trial judge, without notice and upon an ex parte application, made an order for the examination of one of the parties. Discussing this order, the Supreme Court of Nebraska said: "No court should grant an order of that kind except upon notice."

We do not mean to hold that formal service of citation, as in actions at law or other proceedings under our general jurisprudence, is necessary. The article under discussion stands alone, bringing into our jurisprudence "suits in the nature of bills of discovery," of which our courts have no jurisdiction apart from this article. Cargill v. Kountze Bros., 86 Tex. 386, 22 S. W. 1015, 25 S. W. 13, 24 L. R. A. 183, 40 Am. St. Rep. 853. This article directs that relief shall be granted, not in accordance with our general statutes, but "with the usages of courts of equity." This usage, on the question of service, is illustrated by the procedure in Cassatt v. Mitchell Coal & C. Co. (C. C. A.) 150 F. 32, 33, 10 L. R. A. (N. S.) 99. This was a proceeding involving the right of discovery and, to quote from the opinion, notice was given as follows: "On presentation of the petition to the Circuit Court a rule was allowed requiring the defendant and its officers and employees named in the petition to show cause before the court on a certain day why they `should not produce on the trial of this cause' the books and writings above referred to, and also why they should not produce them at a certain time and place before trial `and permit the plaintiff, its counsel and accountants to inspect the same and take such copies as they may deem proper.'" In Blocker v. Bank (Tex. Civ. App.) 295 S. W. 341, regular service of citation was had. In that case the method of service was not in issue, but its facts illustrate the necessity for notice of some kind before the entry of the final order. The method suggested in Cassatt v. Mitchell, etc., would not be exclusive, but service may be had under the general statutes providing for citation or by any other process of notice recognized by courts of equity such as subpœna, summons, etc. The only essential is that the defendant must have an opportunity to be heard before the entry of the final order. However, we think this want of notice was supplied in this case and the error complained of rendered harmless by the subsequent order entered on appellant's motion, giving him a full and complete hearing and an opportunity to urge all available defenses against the prayer for discovery.

The next question presented is one not assigned, but involves our jurisdiction to entertain this appeal. Is the order appealed from final or merely interlocutory? Citing the Cassatt Case, supra, as well as many other authorities, 18 C. J. 1078, announces the proposition, "On a pure bill for discovery the case is never brought to a hearing." In the Cassatt Case a motion to dismiss the writ of error was urged on the ground that the order appealed from was not a "final decision." After discussing the nature of the order awarding the appellee a discovery and reviewing many authorities defining "interlocutory" and "final" judgments, the court reached the following conclusion: "Our conclusion on the motion to dismiss the writ of error is that as the plaintiffs in error have been subjected to the jurisdiction of the Circuit Court and made liable to its order in a proceeding collateral to and independent of the action at law, and as the order is a decision of all the matters involved in that proceeding, and leaves nothing to be done except the ministerial act of executing it by producing the books of the defendant company both before and at the trial of the action, it is, in so far as it requires production before the time of trial, a `final decision' reviewable on a writ of error." Again, under article 2002, pure bills for discovery are...