Clark v. Employers' Casualty Co. , 1933 Tex. App. LEXIS 1374 ( 1933 )

Appellee has filed its motion to dismiss this appeal on the ground that the judgment entered by the trial court on appellee's petition for a bill of discovery is not such a final judgment as can be appealed from.

Appellee in its petition alleged that it was an insurance company; that appellants, acting as its agent and attorney in fact, had issued and sold various fidelity, guaranty, and surety bonds for them, and had collected premiums therefor; that the records and books containing information in regard to these sales and the amount due to appellee were in the possession of appellants; that appellee had reason to believe and did believe that appellants were indebted to it for premiums on bonds sold and in contemplation of a demand or suit for such sums due, prayed the court that the appellants be required to answer certain interrogatories, and to submit their books, records, and accounts and correspondence to an auditor appointed by the court in order that an accounting might be had.

Appellee's prayer reads:

"Wherefore, plaintiff prays that defendants, and each of them, be cited to appear herein and to show cause why plaintiff should not have judgment and order of this court that defendants, and each of them, make true, correct and faithful answers under oath to the interrogatories attached hereto and made a part hereof, and that defendants, and each of them, submit all their books, records, accounts, correspondence and data involving the matters herein to plaintiff and its attorneys for examination and analysis at a reasonable time and place to be determined by this court and that this court appoint auditors of its selection to audit the books, records, accounts, correspondence and data of all parties hereto with reference to the matters involved herein, and with a view to correctly determining the status of plaintiff's account herein referred to, and that the defendants, and each of them, be required to retain and keep within the jurisdiction of this Court all such books, records, accounts, correspondence and data subject to such further examination of same by plaintiff herein, its attorneys and accountant, as may be ordered by this Court, and until such time as plaintiff's account herein pleaded be finally determined and disposed of, and for such further relief to which plaintiff may show itself entitled."

Upon hearing the court granted appellee's application for a bill of discovery; ordered appellants to answer the interrogatories submitted; ordered them to deliver to the clerk of the court all their books, records, accounts, and correspondence in relation to the bonds sold, delivered, executed, or handled by them; ordered the clerk to deliver them to certain accountants for purpose of a complete audit; and further ordered appellants to keep such records, accounts, and correspondence, after they had been returned to them, within the jurisdiction of the court for such further inspection, examination, and audit as might be necessary.

Article 2002, Revised Statutes, reads:

"All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies."

If the judgment above is not a final judgment, then this motion should be sustained.

Appellee admits that in some cases involving a bill of discovery the judgment might be a final one, but argues that the judgment here is not a final one because the court retained control and direction of the subject-matter with the anticipation of ordering such further things as the court might deem necessary to the final settling of the account claimed. In Samuels v. Finkelstein, 25 S.W.2d 923, 925 (writ dismissed), the Beaumont Court of Civil Appeals discussed and decided the question whether an order requiring a party to answer interrogatories was final or merely interlocutory. As a basis for holding the order in that case a final judgment, the court quoted the following expression from 18 C.J. 1078:

"On a pure bill of discovery the case is never brought to a hearing."

The court referred also to the case of Cassatt v. Mitchell Coal Coke Co. (C.C.A.) 150 F. 32, 10 L.R.A. (N.S.) 99, and quoted from that decision the following:

"Our conclusion on the motion to dismiss the writ of error is that as the plaintiffs in error have been subjected to the jurisdiction of the Circuit Court and made liable to its order in a proceeding collateral to and independent of the action at law, and as the order is a decision of all the matters involved in that proceeding, and leaves nothing to be done except the ministerial act of executing it by producing the books of the defendant company both before and at the trial of the action, it is, in so far as it requires production before the time of trial, a ``final decision' reviewable on a writ of error."

The effect of the order here is, as we view it, that appellants answer the interrogatories, produce the records, and then not remove them from the jurisdiction of the court.

If we be correct in such view, then there was a final judgment from which an appeal will lie, there remaining nothing to be done except ministerial acts.

We, therefore, conclude that the motion to dismiss must be overruled.