Rigdon v. Conley

Moran, J.

We are of opinion that the court erred in refusing to order the production of the books on the motion made May 28th, before the trial, and supported by the affidavit set out in the statement of facts. Sec. 9, Chap. 51, E. S., provides: “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.”

The power given by this section is in furtherance of justice, and is to be exercised in aid of parties litigant whenever proper application is made to the court and it is shown that the boobs or writings contain evidence pertinent.to the issue between the parties.

The affidavit of Bigdon made a clear case for the production of the books, and an ‘inspection of them for the purpose of ascertaining evidence that would show that Conley did not have the funds that he claimed in the hands of Buinsey & Co., could not justly be denied him.

The old idea that entries in a party’s boobs are secret, and to be sacredly guarded from the examination of his opponent in a law suit, is fast passing away. In nearly all the States books and writings may be subjected to inspection under statutory provisions similar to dur own. Abuse of the right of inspection may be readily prevented by the terms of the order requiring the production, as was done in Pinchon v. Day, 118 Ill. 9, and in framing such orders the court may always exercise a discretion for the prevention of annoyance to the party, or the indulgence of impertinent inspection as to matters not relating to the inquiry.

Failing to order the production of the books on the motion first made the court should have allowed the motion made just before the trial was entered upon, to produce the books for use on the trial. The affidavit filed stated facts which entitled the defendant to the books for use on the trial, and it is no answer that the parties could get the books by subpoena.

There are some other errors assigned which we do not deem it necessary to discuss, as they are not likely to be repeated on another trial.

For the errors pointed out the judgment will be reversed and the case remanded.

Reversed cmd remanded.