Lucas v. Neidlinger ( 1954 )

210 Ga. 557 (1954) 81 S.E.2d 825

LUCAS et al.
v.
NEIDLINGER.

18546.

Supreme Court of Georgia.

Submitted April 12, 1954. Decided May 10, 1954.

Aaron Kravitch, for plaintiffs in error.

William F. Braziel, contra.

HAWKINS, Justice.

1. "The superior court in equitable proceedings may compel either party to discover facts within his knowledge, beneficial to the other party and material to his case; and this either upon a petition for discovery and relief, or for discovery alone, ancillary to some other civil proceedings." Code § 38-1101. See also Coca-Cola Co. v. City of Atlanta, 152 Ga. 558 (110 S.E. 730, 23 A. L. R. 1339).

2. "To maintain a petition for discovery, the petition should show that the facts sought to be discovered of the respondents can legitimately be used in a suit pending, or in one which the petitioner intends to bring; and in this last case it must appear further that the petitioner is authorized, under the law, to institute and maintain the contemplated proceeding." Farmers Bank v. Harrison, 182 Ga. 623 (186 S.E. 687).

3. "A bill of discovery will lie in aid of actions for personal torts, and discovery may be had in aid of actions of tort relating to property." 27 C. J. S. 9, § 3.

4. This case comes on writ of error to a judgment overruling a general demurrer; and accordingly the facts of the case must be assumed to be as alleged in the petition. Fields v. Union Central Life Ins. Co., 170 Ga. 239 (6d) (152 S.E. 237). See also Collier v. Mayflower Apartments, 196 Ga. 419, 425 (26 S.E.2d 731); Citizens & Southern Nat. Bank v. King, 184 Ga. 238, 247 (190 S.E. 857); Higdon v. Dixon, 203 Ga. 67, 70 (1) (45 S.E.2d 423).

5. "Beginning with the decision of this court in McLaren v. Steapp, 1 Ga. 376, it has been the general rule that, if the plaintiff is entitled to any relief under the allegations of his petition a general demurrer will not be sustained." Abernathy v. Rylee, 209 Ga. 317, 321 (72 S.E.2d 300). See also Babb v. McKinnon, 185 Ga. 663, 664 (a) (196 S.E. 488).

6. While "A petition for discovery merely . . . shall not be sustained unless some reason shall be shown why the usual proceeding at law is inadequate" (Code § 38-1302), and "for equity to take jurisdiction on the ground of discovery, it must appear that the discovery is necessary, not merely that it is desirable or may be useful or that the complainant can more satisfactorily prove his case with than without it" (Georgia Power Co. v. Owen, 207 Ga. 178, 181, 60 S.E.2d 436), and while the fact that discovery is prayed in a bill will not give equity jurisdiction, where equitable discovery is in no way necessary to an assertion of the complainant's rights (Mackall v. West, 67 Ga. 278), and "No party shall be required to discover matters tending to . . . expose him to a penalty or forfeiture, nor to make discovery of irrelevant matters, . . . nor matters relating to his own and not the plaintiff's case" (Code § 38-1102) — yet where, as in this case, the plaintiff alleges that "the information and facts sought are necessary, beneficial, and material to the petitioner's suit for damages to be brought against defendants, and are peculiarly within the knowledge of the defendants, and unknown to petitioner," and further that "the petitioner is unable to ascertain or prove such facts and information without resort to the conscience of the defendants, and that the petitioner has no adequate and complete remedy at law," and that the discovery sought is "necessary to plaintiff in order for him to bring his suit against the proper parties or party to recover damages for the injury to his automobile, said suit to be brought upon securing the information herein requested," the petition stated a cause of action and it was not error to overrule the general demurrer.

Judgment affirmed. All the Justices concur, except Wyatt, P. J., who dissents.