Dunlap v. London Guaranty & Accident Co.

AnAMS, J. In the courts of common law the plaintiff was required to make out his case by the evidence of witnesses or the admissions of the defendant. The right to enforce discovery was a prerogative of the Court of Chancery. By the exercise of this right the court provided effectual means of ascertaining the truth with justice to the plaintiff and without wrong to the party examined. The plaintiff was entitled to the discovery of all facts material to' his case, but the question of *654 materiality was largely determinable by tbe plaintiff’s interrogatories and tbe statement in bis bill. Tbe defendant was required to discover tbe truth of tbe plaintiff’s claim but not to answer questions be bad a right to resist. He was required in like manner, when called upon by tbe plaintiff, to set forth a list of all documents in bis possession from which discovery of tbe matters in controversy could be obtained; but tbe .possession of tbe documents and their character as 'fit subjects of discovery were usually shown by tbe defendant’s answer to' tbe plaintiff’s bill. It was customary to include in tbe bill an interrogatory asking whether tbe defendant bad in bis possession any documents relating to tbe matters alleged and, if be admitted tbe possession, to move that be produce them before tbe examiner at tbe bearing of tbe cause. If be did not admit the possession, production could not be enforced; for tbe admissions necessary to compel production were that tbe documents were in bis possession or control and that .they were of such a character as to constitute matters of discovery. In proper cases tbe plaintiff was entitled to production and inspection. Section 1823 of tbe Consolidated Statutes was designed and intended to supersede tbe equitable bill of discovery, but tbe former practice affords material aid in tbe interpretation of tbe statute. Bank v. McArthur, 165 N. C., 374. Tbe statute, being somewhat broader in its effect than tbe equitable bill of discovery, should be liberally construed; but it contains provisions which are fundamental. Bank v. McArthur, supra; Ross v. Robinson, 185 N. C., 548. If tbe requirements are not complied with, or if tbe order of tbe court goes beyond tbe powers contemplated and conferred by law, tbe order will be set aside. Sheek v. Sain, 127 N. C., 266; Ross v. Robinson, supra. Tbe order of tbe court is usually based upon an affidavit and if tbe affidavit is insufficient tbe order is invalid. Mica Co. v. Express Co., 182 N. C., 669. In Evans v. R. R., 167 N. C., 415, tbe Court said: “As to whether a paper-writing comes within tbe description of tbe statute is a question of law. It would seem that tbe affidavit in this case is not a sufficient description of tbe paper to justify tbe court in ordering its production. ‘A mere statement that an examination is material and necessary is not sufficient. • This is nothing more than tbe statement of tbe applicant’s opinion. Tbe facts showing tbe materiality and necessity must be stated positively and not argumentatively or inferentially.’ 14 Cyc., 346. Again, it is said that ‘a party cannot obtain a roving commission for tbe inspection or production of books or papers in order that be may ransack them for evidence to make out bis case. He is entitled to production or inspection only when tbe same is material and necessary to establish bis cause of action.’ 14 Cyc., 370:” *655 If the affidavit is sufficient to justify the order, whether the judge shall grant the order or decline it, is a matter within his discretion. Bank v. Newton, 165 N. C., 363; Evans v. R. R., supra. The affidavit made by the plaintiffs attorney does not comply with the requirem'ents of the law. The third paragraph refers to papers, books, and documents said to contain evidence pertinent and relevant to the merits of the plaintiffs cause of action, but the affiant is absolutely ignorant of their contents. How, then, can their relevancy be determined ? Furthermore, no paper is described with sufficient accuracy to enable the court to say whether it has any relation to the plaintiff’s action. The fifth paragraph refers to notices which “set out in full'the papers necessary and pertinent to the plaintiff’s cause of action”; but as suggested in Evans v. R. R., supra, this is nothing more than a statement of the affiant’s opinion. In these notices the plaintiff calls for the production of reports, copies, and correspondence between various persons without proof or allegation that such papers exist or that their contents are known, and without the statement of any facts showing that they are material to the cause. It may be observed in addition that both the notices and the order of the court are alternative; certain papers or others are to be produced. Is the plaintiff, the defendant, or the court to be the judge of the alternative production? The order of the court is insufficient or must therefore be set aside. Error.