* Headnote 1. Discovery, 18 C.J., Sections 25, 38. The appellee filed suit against appellant, the Palmetto Fire Insurance Company, and D.H. Adams, its agent at Boyle, Miss., alleging that on or about February 26, 1923, said fire insurance company, through its said agent, issued to appellee a fire insurance policy in the sum of one thousand, five hundred dollars for a term of one year on household furniture belonging to appellee; that to the best of appellee's recollection the premium paid was fifty-four dollars, and the same was charged to complainant on the books of account of said agent on thirty days' time, and was paid at the end of thirty days from the date of the issuance of the policy; that this had been the custom between complainant and said D.H. Adams, the insurance agent of the appellant; that, shortly before *Page 687 the policy would expire by limitation, complainant, who was away from home a good deal on business, requested said Adams not to allow the policy to lapse, but to keep said insurance in force, and that said Adams promised so to do, and assured both complainant and complainant's wife that such insurance would be kept in force; that said policy expired by limitation on February 26, 1924, and on February 28, 1924, the furniture so insured was burned and totally destroyed; and that said Adams had failed to issue a new policy in accordance with the custom between the parties and in accordance with his agreement. It is further alleged that the policy so issued was lost or destroyed, so that complainant could not set out the terms and conditions thereof, but that said fire insurance company and said D.H. Adams each had a copy thereof, and that complainant was entitled to recover from said fire insurance company and said Adams the amount of his loss up to the sum of one thousand five hundred dollars, the amount of said policy; that complainant was entitled to have the policy issued for the same amount and under the same terms and conditions as the original policy, except as to dates, and that the dates should be for one year from February 26, 1924, viz., to February 26, 1925.
Complainant further alleged that he had tendered the amount of the premium due thereon and requested payment of said amount, but that said agent refused to accept the premium and refused to issue a new policy, and refused to pay the loss occasioned by said default; that complainant had made diligent search for said original policy, but was unable to find same, and prayed for process upon defendants and for a discovery of the terms and conditions of the lost policy of fire insurance, and that, said defendants be ordered to produce or procure a copy of the said policy of insurance, showing all of its terms and conditions, if possible to do so, but in default to produce their books and records showing the issuance, terms, *Page 688 and conditions of said lost policy, and that said fire insurance company be ordered to issue a policy of fire insurance, renewing the policy aforesaid, and containing the identical terms and conditions as the original policy contained, but to expire one year from the date of the expiration of the old policy; and that defendants be held liable to the complainant for the amount of said insurance contained in said policy. There was no prayer for general relief.
The bill was demurred to on several grounds. First, that there was no equity on the face of the bill; and on several grounds pertaining to the discovery feature of the bill, challenging its sufficiency because of the waiver of oath to the answer, and because the original bill was not sworn to, and because the bill was multifarious. The demurrer was overruled by the court below, and appeal granted to settle the principles of the case.
While the bill prays for relief on the facts alleged and on the facts to be discovered, it does not contain such allegations as would enable the court to grant relief without a discovery. In other words, it is not such a bill as could be taken for confessed, and relief granted on the allegations therein contained. The discovery prayed for is essential to the making of the cause for the complainant. Discovery is the ground of equity relied on by complainant, and if the facts sought to be discovered were in the possession of complainant it would properly be a suit at law. Under the equity practice proper, in the absence of statutes, it is necessary for the answer to be sworn to. The oath is the thing that makes the discovery evidence, and it is that which distinguishes it from a mere pleading. In the absence of statute providing otherwise, a bill of discovery cannot be taken pro confesso. 6 Am. Eng. Enc. Pl. Pr. 732. A bill for discovery cannot be maintained if it waives answer under oath, for a waiver destroys the adequacy of the answer as regards discovery and turns it into a mere pleading. 6 Am. Eng. Enc. Pl. Pr. 732. *Page 689
Under section 585, Code of 1906 (Hemingway's Code, section 345), it is provided:
"The answer shall be sworn to by the defendant unless the complainant in his bill shall waive an answer under oath; in which case the answer, whether sworn to or not, shall not be evidence for the respondent. The answer of a corporation need not be under its seal, but shall be sworn to by its president, general manager, or superintendent or other general officer, unless an answer under oath shall likewise be waived."
Section 586, Code of 1906 (Hemingway's Code, section 346), provides that:
"The rule reguiring two witnesses, or one witness and and corroborating circumstances, to overthrow an answer denying the allegations of the bill, is abolished in all cases where the bill is sworn to by the complainant; and such an answer shall have only such weight and credit as in view of the interest of the party making the same, and the other circumstances of the case, it may be fairly entitled to."
Do these statutes change the equity rule making oath to the answer essential to the validity of the discovery, as distinguished from mere pleading? In Hentz v. Delta Bank,76 Miss. 429, 24 So. 902, the court discussed some of these statutes, but did not decide the question now before us. The suit there was an injunction suit, and the point was not decided whether the answer could be used as evidence on the motion involved. We do not think that these statutes were intended to affect bills for discovery. Under the ancient chancery practice the answer was evidence and it required two witnesses, or one witness and corroborating circumstances, to overturn the answer in any case in equity. These statutes were intended to obviate, or place it in the power of complainant to obviate, the rigor of this rule. Of course, a bill may be filed and the defendant called on to answer and to produce certain papers; but, if the bill waives answer *Page 690 under oath, it is a mere pleading, and when the answer is filed, unsworn to, the cause proceeds with the burden on complainant to make out his proof as to all matters not admitted in the answer.
We therefore think it was error for the court to overrule the demurrer in this cause, because discovery was essential to the complainant's cause of action. The judgment of the court below will therefore be reversed, and the demurrer sustained, and the bill ordered dismissed, unless complainant amends his bill within thirty days from receipt of the mandate in the court below.
Reversed and remanded.
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