Field v. Zemansky , 9 Ill. App. 479 ( 1881 )

Wilson, P. J.

The plaintiff sought to show title to the goods, under an alleged purchase by him, from one Simon Lipid. The defendants attacked the sale on the ground of fraud and collusion between the plaintiff and Lipid. The writ of attachment under which the goods were seized was not offered in evidence, but as no replication was filed to the plea, justifying the taking under the writ, the plea stood confessed, and the defendants were thus in a position to attack the sale on the ground of fraud.

The plaintiff, who was the only witness sworn in his behalf, testified that he purchased the goods of Lipki August 31,1880; that they took an inventory of the goods, and agreed on $400 as the purchase price; that a bill of sale was drawn, and he paid $75 cash down, and gave his check for $325 for the balance; that he took possession of the goods by his clerk, who brought them to plaintiff’s store the second morning after their purchase, when he paid the balance of the purchase-money to Lipki’s wife. The writ of attachment was served the same day in the afternoon.

At the conclusion of the plaintiff’s evidence, the defendants produced and read to the court, a notice in writing, served on the day of the trial, service of which had been duly accepted by plaintiff’s attorney, notifying him to produce at the trial, all checks, bills of sale, and other papers used, or alleged to have been used in the transfer of the goods replevied, and moved the court for a rule on the plaintiff to produce to be used in evidence by the defendant, the memorandum or inventory, bank check and other papers referred to in the notice. The court denied the motion, on the ground that it knew of no law conferring authority upon the court, to require" the production of such papers; and the papers were not produced.

Section 9 of the Practice Act (Rev. Stat. Chapter 31), provides that the several courts shall have power in any action pending before them, upon good and sufficient cause, and upon reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue. This statute gave to the court ample authority to require the production of the papers referred to in the notice.

The objection that no sufficient notice was given, is without force. The only reason for requiring previous notice to be-given is, that the party may have an opportunity to produce-the books or papers called for, and not be taken by surprise on the trial. But here the papers asked for were in court in, the hands of the plaintiff’s attorney at the time of the trial, and there was no necessity for any previous notice. Ho surprise or hardship could result from his being required to- produce thétn on demand.

Counsel for appellee urges various objections to the sufficiency of the* notice, which are of an exceedingly technical character, as that defendant Hoffman’s name was spelled Hoof-man, and Lipki’s, Lipke, etc. These, as well as the further objection that, the-notice was too indefinite and uncertain, are without any force. The plaintiff’s attorney admitted that he had the papers in court, and the court refused to order their production, on the sole ground of want of authority. This was error, and the judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.