Steverson v. W.C. Agee & Co.

• Decision Date: 18 November 1915
• Docket Number: 5 Div. 189
• Citation: 14 Ala.App. 448,70 So. 298
• Parties: STEVERSON v. W.C. AGEE & CO.
• Court: Alabama Court of Appeals

70 So. 298

14 Ala.App. 448

STEVERSON v. W.C. AGEE & CO.

5 Div. 189

Court of Appeals of Alabama

November 18, 1915

Appeal from Circuit Court, Tallapoosa County; Thomas W. Wert, Judge.

Action by W.C. Agee & Co. against J.M. Steverson. Judgment for plaintiff, and defendant appeals. Affirmed.

P.O Stevens and Geo. A. Sorrell, both of Alexander City, and Riddle, Ellis & Riddle, of Goodwater, for appellant.

J.W Nolen, of Alexander City, for appellee.

THOMAS J.

While the common law afforded a remedy or means, known as a "subpoena duces tecum" (a matter now regulated largely by statute in this state--Code 1907, §§ 4060, 4061) for enforcing persons not parties to the suit to produce in court, to be used as evidence at the trial, documents or writings in their possession that were material to the issue between the parties litigant, yet that law refused to compel except in rare instances, as pointed out in 23 Am. & Eng.Ency.Law (2d Ed.) 169, either party to the suit to aid the other in the conduct of the suit or its defense by producing such documents or writings that belonged to himself. The opposite party, it is true, might issue to the other a notice to produce at the trial such writings or documents that were in his possession and belonged to him; but, if the latter failed or refused to do so, the only legal consequences of such failure or refusal (aside from the probable prejudicial effect against him which his act might have on the minds of the court and jury) were to entitle the opposite party to give secondary evidence of the contents of such documents or writings. But the court was at common law without authority, except in the rare instances referred to, to order or compel either party to the suit to produce for the benefit of the other party, documents or writings belonging to him and in his possession. The only recourse was a bill in equity for discovery. 23 Am. & Eng.Ency.Law (2d Ed.) 169; 6 Ency.Pl. & Pr. 728; Golden v. Conner, 89 Ala. 598, 8 So. 148; Virginia & Alabama Mining & Mfg. Co. v. Hale, 93 Ala. 542, 9 So. 256; Ex parte Baker, 118 Ala. 193, 23 So. 996.

With a view to providing a more speedy and less expensive remedy than by proceedings in chancery, though that remedy still exists (6 Ency.Pl. & Pr. 738), sections 4058 and 4059 of the Code were enacted, which provide (section 4058) that:

"In the trial of actions at law the court may, on motion and due notice thereof, require the parties to produce books, documents, or writings in their possession, custody, control, or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceedings in chancery." And (section 4059) that:

"If a plaintiff fails to comply with such order the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if the defendant fails to comply with such order the court may, on motion, give judgment against him by default."

It will be observed that under the quoted sections the conditions named as precedent to the exercise by the court of the power and authority there conferred are: First, a motion to require the production of such books, writings, or documents ( Birmingham Dry Goods Co. v. Bledsoe, 117 Ala. 495, 23 So. 153); second, notice of the motion to the opposite party; third, that such books, documents, or writings "contain evidence pertinent to the issue" ( A.G.S.R.R. Co. v. Taylor, 129 Ala. 238, 29 So. 673); and, fourth, that such opposite party has the possession, custody, or control of, or power over such books, etc. ( Goss v. Weiman, 5 Ala.App. 404, 59 So. 364). When these conditions exist, then the court "may, in cases and under circumstances" where a chancery court would compel production, do so under the statute.

The court in the present case refused a motion of defendant to require the plaintiff to produce at the trial a certain ledger, which, it was alleged, showed certain transactions between plaintiff and a third party (one Rich), and which, by reason thereof, it was alleged contained evidence material to the issue. As will appear from the opinion on a previous appeal of this case, as reported in 9 Ala.App. 389, 63 So. 794, under the style of Steverson v. Agee & Co., the only issue in the case arose under defendant's pleas of set-off--the correctness of plaintiff's account that was sued on being practically admitted by defendant, who sought to defeat recovery merely by setting up as a set-off that plaintiff, with notice of defendant's lien, had converted certain lumber belonging to defendant under a mortgage against said Rich. Plaintiff admitted that Rich had sold lumber from time to time to Johnson & Co., lumber dealers, who by direction of Rich paid the proceeds thereof to plaintiff, who is a grain dealer, as a credit on his account against Rich, and plaintiff had on hand at the trial books and papers, which he produced, showing the dates and amounts of these credits. The only dispute in the case was as to whether or not this lumber--the proceeds of which plaintiff received--was or not lumber covered by defendant's lien.

The defendant, in support of his motion to require plaintiff to produce the ledger mentioned, offered no evidence whatever tending to show that, if said ledger were produced, it would contain any evidence material to the issue mentioned, which as said, was the sole controverted issue in the case. One of the plaintiffs, however, called as a witness for defendant, testified under oath to facts which, if true, showed that the ledger, if produced, would contain no evidence pertinent to such issue, but that the witness had on hand ready to produce at the trial all the books, papers, etc., that he produced at the previous trial in response to a similar notice from defendant and which defendant accepted then as a sufficient compliance with the notice; that the ledger mentioned was in plaintiff's office at Birmingham, a considerable distance from the place of the trial (Dadevil...