Wynn v. Taylor , 1903 Ill. App. LEXIS 378 ( 1903 )

Mr. Justice Windes

delivered the opinion of the court.

The question presented is whether on this record appellant could be required to produce before the master the books of account of Wynn & Co.

From the statement it will be seen there was no attempt to comply with the statute (Hurd), Sec. 9, Chap. 51 of the Evidence act of this state, which is, viz.:

“ The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and 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.”

In the case of Meeth v. Rankin Brick Co., 48 Ill. App. 606 (3d Dist.), it was held, construing this statute, that an affidavit was required to show that books sought to be produced contained evidence “ pertinent to the issue.” In Lester v. People, 150 Ill. 408-18, in which the same statute was construed, the court said:

“ Unless a showing is made, upon good and sufficient cause, that the evidence sought, or that the books and papers required to be produced, contain evidence pertinent to the issue on behalf of the party applying therefor, the application should be denied.”

To the same effect is First Nat. Bank v. Mansfield, 48 Ill. 494. Ho formal affidavit was made—only the sworn testimony of appellant was before the court (if that may be called an affidavit, which it is unnecessary for us to decide and we do not decide), and no issue was formed either upon the bill or the petition of the receiver. There being no issue before the master or the court, as is clearly contemplated by the statute, there only remains to be considered the claim of appellee’s counsel that the court, under its general chancery powers, could rightfully compel appellant to produce his books. Ho adjudicated case deciding this exact question has been cited by counsel, nor have we, in the time at our disposal, been able to find such a case. All the cases cited are where there was an issue before the court or a decree had already passed, excepting the case of Bentley v. People, decided in this court, 104 Ill. App. 353, where there was an investigation before a grand jury. The question as to whether or not there should be an issue did not arise, and was not decided in that case. The case of Leopold v. People, 140 Ill. 552, relied on by appellee, does not decide the question, but only that the defendant in a bill filed to settle a partnership, who entered his appearance, consented to the appointment of a receiver and admitted the partnership, should submit to an examination before the master in reference to the copartnership property.

In People v. Western Mfrs. M. Ins. Co., 40 Ill. App. 428, it was said that the statute was intended to obviate the necessity of a bill of discovery.

In the Meeth case, supra, the court said the power “should be used with circumspection lest it be abused,” and that the court should be able to see, from the showing made, that “ the application is made for no improper or ulterior purpose.”' In the Lester case, supra, it was said that the statute did not give this right “ with a view to find evidence to be used in other suits or prosecutions.” We think the statute was not only intended to avoid the necessity of a bill for discovery, but to broaden the powers of a chancery court and simplify the proceeding. The practice in chancery in this regard is thus stated by Mr. Pomeroy in his Equity Jurisprudence, Sec. 205, note 2:

“ By the original chancery practice, an interrogatory or interrogatories, more or less specific, according to the plaintiff’s choice, are inserted in the bill, asking the defendant whether he has any documents, or such and such particular documents, in his possession. If his answer admits his possession of material documents, an order is made, on the plaintiff’s motion, for their production, so that they may be inspected. Under the more recent practice the defendant’s admissions are made in his answer to interrogatories filed, or in his affidavit made in reply to the plaintiff’s motion.”

The author further says:

“ It is well settled that the matter of the production and inspection of documents depends upon the same principles and doctrines which govern discovery in general.”

In Wigram on the Law of Discovery, in speaking of the rules of pleading in equity as bearing on discovery, the author (*p. 32) says:

“ The object of a court of equity in compelling discovery, is only to enable itself or some other court to decide on matters in dispute between, the parties. The right to discovery, therefore, is in all cases limited by the purpose with reference to which alone it is conferred", and will not in any case extend beyond the exigencies of the particular case about to be tried. * * * By these rules, if the defense be such as to raise an issue in law only (as by demurrer) the plaintiff will not be entitled to any discovery. * * * As this mode of defense admits the plaintiff’s statement of his case, no discovery will be wanted for the trial.”

The author in the same connection proceeds to state the effect in case the defendant should plead or answer, namely, to confine the discovery to the issue or issues presented by such plea or answer. It would, therefore, seem that when it is desired to get evidence to,establish a complainant’s alleged right, whether under the statute or by the practice in chancery, an issue, either of law or fact, should first be made, and the evidence should be shown to be pertinent to that issue. The court should also be able to see that the application was not made for any improper or ulterior purpose, and that the evidence was not to be used in other suits or prosecutions. When by a demurrer or otherwise the defendant admits what the complainant seeks, all expense and uncertainty are avoided. We think the better practice is to await, or at least to require, an issue to be made by the pleadings before ordering the production of books claimed to be pertinent to a complainant’s case.

Because there was no issue before the court, nor any effort to require one, we are of opinion the learned chancellor erred in making the order of commitment in question, and it is therefore reversed.