Strickland v. Hendricks , 22 Ga. App. 212 ( 1918 )

Jenkins, J.

R.-A. Hendricks brought a petition to the city court of Nashville, alleging that he was a defendant in a named suit on a promissory note, in that court, and asked that the note sued on be impounded with the clerk of the court, in order that he, as a defendant, might be enabled to bring into court the evidence of certain non-resident witnesses, indispensable to his defense. The petition alleged, "that counsel for the plaintiff refuses to permit this defendant to use the said note sued upon, for the purpose of exhibiting the same to witnesses, taking testimony, and preparing the same for trial; that it is necessary to the ends of justice that the original note sued upon be impounded with the clerk of the city court of Nashville, wherein said case is pending, with the privilege that all parties interested in said case have free access to said note.” In response to the rule nisi on this petition, the plaintiff in the suit referred to filed! a demurrer and. an answer to the petition, and in the answer denied the allegations quoted above, and further answered as follows: “The defendants E. A. Hendricks and J. A. Sirmans, either 'or both, are at liberty to inspect the notes in question.. Either one of counsel for J. B. Strickland, to wit, J. P. Knight or W. E. Smith, here and now offers and agrees to permit either E. A. Hendricks or J. A. Sirmans, or both of them, to inspect and examine at their pleasure as often and at such times as they may desire.' Eespondents refuse, however, to impound said notes in the clerk’s office of Berrien superior court, or to tarn the same over to petitioner for.any purpose; but in this connection respondents say that they will be glad to produce the said notes anywhere, at any time, upon due notice given for the purpose of taking the depositions of any witness for petitioner.” On the hearing of the petition no evidence was introduced, but in a note by the presiding judge, appended ta the record, it is stated that “E. A- Hendricks, attorney for himself, stated in his place in open court that a plea of non est factum was filed in the case, and that he desired to take the testimony of certain non-resident witnesses, also resident female witnesses; that access 'to the original note was necessary in order to take this testimony, all of which he stated was relevant to^the case; that he had been 'refused the use of the original notes to use in taking testimony.” The court passed the two following orders:

"Georgia, Berrien County. Hpon reading and considering the above and foregoing application, and after a hearing upon the same, it appearing to the court that, in order that the ends of justice may be met, it is necessary for .the defendant to inspect the original notes sued upon in the matter herein referred to, and it further appearing that in'order to take the testimony of non-resident witnesses tending to sustain the defense filed in the cause; whereupon it is ordered that the said original note sued upon be deposited in the clerk’s office of the city court iff Nashville, for the inspection by the defendant and to be used by the defendant in the examination of non-resident witnesses. This July 17th, 1917. C. A. Christian, Judge City Court of Nashville.”

“J. B. Strickland vsl B. A. Hendricks and J. A. Sirmans.

City Court of Nashville, July term, 1917.

Suit on note.

“Georgia, Berrien County. An order having been granted in the above-stated ease, requiring the plaintiff to deposit in the clerk’s office of the city court of Nashville the original notes sued upon, for the inspection and examination' of the defendant, it is ordered that said clerk keep said notes securely locked’ and allow no one to remove same, except the defendant or his counsel, and then only- at such times as they may desire to take the testimony of witnesses touching said case. Defendant or his counsel to leave receipt for said note, when same is being used for the purpose of taking testimony, and tó be returned immediately after testimony is taken. This July 17th, 1917.

[Signed] C. A. Christian, Judge City Court of Nashville.”

To the orders thus entered, exception was taken.

The ruling stated in the headnote does not require elaboration.

Judgment reversed.

Wade, O. J., and Lulce, J., concur.