Strauss v. Hutson

• Court: Mississippi Supreme Court
• Writing for the Court: COOK, J.
• Citation: Strauss v. Hutson, 104 Miss. 637, 61 So. 594 (Miss. 1913)
• Decision Date: 14 April 1913
• Docket Number: 15,960
• Parties: SIMON STRAUSS v. F. H. HUTSON ET UX

61 So. 594

104 Miss. 637

SIMON STRAUSS v. F. H. HUTSON ET UX

No. 15,960

Supreme Court of Mississippi

April 14, 1913

APPEAL from the chancery court of Washington county HON. E. N THOMAS, Chancellor.

Bill by Simon Strauss against F. H. Hutson and wife. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

A. J Rose, for appellant.

We ask the court to bear in mind that this bill seeks discovery from both defendants. If, at the hearing of the cause, evidence is attempted to be introduced making the husband or wife testify against the other it will then be subject to proper objection, but the defendant, F. H. Hutson, the husband cannot decline to answer and discover as to his own accounts, dealings and conduct on the ground that such discovery might be used against others. Nor can the defendant, K. S. Hutson, the wife, decline to answer and discover as to her own acts and conduct on the ground that such discovery might be used against others.

A court of chancery will compel a discovery to detect fraud and imposition in a suit to set aside a fraudulent conveyance. 2 Moore on Fraudulent Conveyances, p. 1039; Bernheim & Co. v. Beer, 56 Miss. 149; Hester v. Thomas, 58 Miss. 108.

Neither can the defendants refuse to answer and discover on the ground that the answers and discoveries of husband and wife might be used against each other, for an answer of one defendant is not evidence against a codefendant. Hanover National Bank v. Klien, 64 Miss. 141.

The peculiar relations of husband and wife will not protect her from making a discovery relating solely to her own conduct, and affecting only her own interests. Metler's Admr. v. Metler, 18 N.J.Eq. (3 C. E. Green) 270.

If appellees' views of the law are correct, then, to use the language of the court in Metler's Admr. v. Metler, supra, "A married man could, by any fraud, possess himself of property or security, and by taking them in the name of his wife, protect both her and himself from answering, and thus avoid the discovery which is one of the most effectual means of administering justice."

Wynn, Wasson & Wynn, for appellees.

The third ground of demurrer ("that the bill, in praying discovery endeavors to force husband and wife to give evidence against each other")--this is not the exact language of the demurrer as the demurrers were separate, one filed by F. H. Hutson and one by K. S. Hutson--should be sustained and the decree affirmed, because if the allegations of the bill be true such discovery would compel the husband and wife to violate, the confidential relation between them and disclose facts which they ought not to be compelled to disclose, e. g., if the allegations of the bill be true as above stated. We refer the court on this point to Fletcher's Equity Pleading and Practice, sec. 808, where this language is used:

"No discovery will be compellable where it is against the policy of the law from the particular relations of the parties. Thus in the absence of statutory changes, for instance if a bill of discovery is filed against a married woman to compel her to disclose facts which charges her husband, it would be dismissed for a married woman is not permitted to be a witness against her husband in controversies with third parties."

In the 7 Dec. Digest, under the head of Discovery, section 10, confidential relations and privileged communications, this language is used: "Under section 877, Rev. St. D. C., providing that a married woman shall not be compellable to disclose any communication made to her by her husband during their married life, a widow cannot by a bill in equity be required to disclose all of the special circumstances of and attending the receipt of any and all property received by her during the period of her married life; and such question of privilege can be raised either by demurrer or by answer to the bill. McCartney v. Fletcher, 10 App. D. C. 572."

Every disclosure made in answer to discovery sought in this bill would be a discovery of facts which could be used by the appellant in this cause. We have only to cite the authorities used by counsel in this case, for in Manley v. Mickle, 37 A. 740, copied by counsel in his brief, this language is used:

"Of course, a discovery in an unsworn answer is not available collaterally, but as an admission in a pleading it may be useful to a complainant in his pending cause and there is no sound reason for denying the right to demand it. Indeed being an answer implies some sort of discovery, even if only by way of admission of the allegations of the bill, and the decisions of this state abundantly recognize its evidential force in favor of the complainant.

In 5 American and English Decisions of Equity, p. 471, this language is used: "But though an unsworn answer is not evidence for the respondent, the complainant may avail himself of any admissions therein in his favor as in the case of any other pleading."

Citing many cases, among them cases cited by the appellant in his brief.

OPINION

COOK, J.

Appellant filed a bill for discovery against appellees, husband and wife. To this bill appellees filed separate demurrers, each assigning three grounds of demurrer,...