Ruggles v. Moore , 57 Ky. 821 ( 1858 )

Judge Stites

delivered the opinion of the court.

These two cases, though arising upon different records, are brought here by the same appellants, present the same questions, and will be considered together.

The petitions go for the recovery of real estate alleged to belong to appellants, and to be in the wrongful and adverse possession of appellees. No title paper’s are referred to in the petitions, and none exhibited as evidence of title. The allegations, however, show a sufficient cause of action in each case, and the petitions were rightfully held good on demurrer.

The defendants appeared, and on their motion, a rule was granted, in each case, to compel the plaintiffs to file their title papers. Several intermediate steps were taken towards the enforcement of the rules, but the final result was, that the plaintiffs declined to comply, and their petitions were dismissed. Exceptions were taken to the several orders; but the only question presented by the records arises upon the rule and the final order making it absolute.

It is attempted to be upheld by the Civil Code, (sec. 155,) which provides that “if either party shall rely up- ' on any deed, or other writing, he shall file with his 4 pleading the original deed or writing, if in his pow- ‘ er. If he cannot produce such deed or writing, he 4 shall so state in his pleading, together with therea4 sons therefor; and if such reasons are sufficient, he 4 may file the best evidence of the contents of such 4 deed or writing in his power. Original deeds and 4 other writings filed by either party as above provi4 ded, shall remain on file for the inspection of either 4 party until allowed by the court to be withdrawn; 4 and in such cases, copies, attested by the clerk, 4 shall be substituted by the party withdrawing the 4 originals.”

When a petition is filed for the recovery of We are unable to perceive the applicability of this section to the case under consideration. Here the party plaintiffs, so far as the record shows, relies on no “deed. or other writing.” It may be that their title is altogether possessory in its character, and based upon no paper evidence. There is nothing to the contrary shown by the record; and upon what ground the original rule was allowed, or the order making it absolute was based, is not seen.

The section, supra, is general in-its character, applying to equitable proceedings in ordinary, and as well to actions for money and the recovery of personal property as to actions for real estate. It was obviously intended to compel the prompt filing of exhibits in equitable proceedings, and the production of papers relied on and referred to either as evidence of title in real actions, or as the foundation, or as evidence of the cause of action in other cases. But where no such deeds or writings are referred to or relied on in the petition or pleadings, the section does not apply. And a rule to file title papers, or papers of any kind, where they are not referred to in the pleadings, is unauthorized, except upon sufficient ground made out by affidavit, and showing that such filing is necessary to the substantial ends of justice.

No such reasons are shown here, and therefore both the original rules and the final orders are deemed erroneous.

Wherefore, the judgments in both cases are reversed, with costs, and the causes remanded, with directions to discharge the rules, and for further proceedings not inconsistent with this opinion.