State v. District Court of the Second Judicial District
| Decision Date | 17 February 1903 |
| Citation | 71 P. 602,27 Mont. 441 |
| Parties | STATE ex rel. BOSTON & M. CONSOLIDATED COPPER & SILVER MIN. CO. v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al. |
| Court | Montana Supreme Court |
Certiorari by the state, on relation of the Boston & Montana Consolidated Copper & Silver Mining Company, to compel the District Court of the Second Judicial District for the county of Silver Bow, and William Clancy, the judge thereof, to set aside an order made for an examination of books and papers of defendant in an action by Patrick Mullins against relator. Order annulled.
Forbis & Evans, A. J. Shores, and C. F. Kelley, for relator.
T. J Walsh and C. R. Leonard, for respondents.
In November, 1902, an action was commenced in the district court of Silver Bow county by one Patrick Mullins, plaintiff against the Boston & Montana Consolidated Copper & Silver Mining Company, defendant, to recover a three-fourths interest in the Comanche mining claim. The plaintiff claims that in 1893 he had a lease and bond on such claim from the Comanche Mining Company, which then owned the claim, and that by the terms of such lease and bond he had the option to purchase such claim at any time within a year for $200,000 that he sold an undivided one-fourth interest in his lease and bond, and thereafter, within the year, was, by fraud and collusion on the part of this defendant, the Butte & Boston Mining Company, one J. A. Coram, and plaintiff's co-tenant in said claim, induced to sell for a small consideration the remaining three-fourths interest in said lease and bond, and that the defendant then became the successor to the Comanche Mining Company. The complaint is lengthy and assumes to set forth in detail the alleged acts of fraud and collusion, but the allegations set forth above are sufficient for the purpose of this decision. After the commencement of the action, plaintiff made an application for an order requiring defendant to permit plaintiff to examine and take copies of certain letters, letterpress copies of letters, maps, stope sheets, stope books, books of account, and the original lease and bond executed to the plaintiff by the Comanche Mining Company, all of which are claimed to be in the possession of the defendant. After notice, and upon hearing, the court made the order complained of. That order comprises nine sections or subdivisions and they are as follows: ***" The relator thereupon made application to this court to have the order annulled.
Section 7, art. 3, of the Constitution, provides, "The people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures," etc. Section 1810 of the Code of Civil Procedure provides: "Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession or under his control, containing evidence relating to the merits of the action, or the defense therein. ***" It will be conceded that, in the absence of any statute, the district court, in the exercise of its inherent powers as a court of equity, could, upon a sufficient showing, make an order for discovery which would furnish plaintiff all the relief which he can obtain under section 1810 above; that the legislative enactment added nothing to the power of the court as a court of equity, but, on the contrary, apparently sought to confer on law courts the authority long exercised by courts of equity independent of statutory authority; and, in addition thereto, gave to section 7, art. 3, of the Constitution, a legislative construction defining the circumstances under which the inspection of the private papers and documents of one party by another will not be deemed an unreasonable search. We conclude, then, that the court--if an action was pending therein--had the authority, upon a sufficient showing, to make a proper order requiring the relator herein to permit the plaintiff, Mullins, to make inspection and copies of such entries of accounts, documents, or papers in its possession or under its control as contain evidence relating to the merits of his action or the defense therein.
Our first inquiry, then, is, was a sufficient showing made? The affidavits filed in support of the application for the order complained of did not contain any statement that an action was pending in the court at the time such application was made. Under section 1810, above, the order for inspection can only be obtained from a court in which an action is pending, or from a judge thereof; and in our view of the case this fact must affirmatively appear from the face of the verified petition or affidavits upon which the application is based. We are further of the opinion that the application should, by express statement, or by apt reference to the pleadings on file, apprise the court of the nature of the action and the relief sought, in order that it may determine whether or not the evidence sought to be obtained by the inspection could, in any view of the case, be material or relevant to the issues. For its failure to show these facts, we consider the application insufficient to vest in the lower court authority to make any order of inspection.
If a sufficient...
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