Burleson Mica Co. v. Southern Express Co.

Adams, J. The appellant’s fourteenth exception impeaches the validity of Judge McElroy’s order, and incidentally of the affidavit on which it is based. The application for the order rests on the following sections of Consolidated Statutes: “The court before which an action is pending, or a judge thereof, may, in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents in his possession or under his control, containing evidence relating to the merits of the action or the defense therein.’ If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.” C. S., 1823. *672 “The courts have full power, on motion and due notice thereof given, to require the parties to produce books or writings in their possession or control which contains evidence pertinent to the issue, and if a plaintiff shall fail to comply with such order, and shall not satisfactorily account for his failure, the court, on motion, may give the like judgment for the defendant, as in cases of nonsuit; and if a defendant shall fail to comply with such order, and shall not satisfactorily account for his failure, the court, on motion as aforesaid, may give judgment against him by default.” C. S., 1824. In our opinion the affidavit is insufficient. The plaintiff Burleson alleged that he had filed certain papers with, and had written certain letters to, the defendants, and that the papers filed with the defendants were necessary in the trial of the action. The latter allegation is only an inference of law. In Evans v. R. R., 167 N. C., 416, Justice Brown said: “A mere statement that an examination is material and necessary is not sufficient. This is nothing more than the statement of the applicant’s opinion. The facts showing the materiality and necessity must be stated positively and not argumentatively or inferentially.” 14 Cyc., 346. The application should also show the necessity for the inspection or production, and it is a generally accepted principle that the affiant’s bare conclusion of law is not sufficient for this purpose. 18 C. J., 1124. Non constat that the plaintiffs did not have carbon copies of the letters and the other papers filed with the defendant, or such knowledge of their contents as would dispense with the necessity of inspection. We regard the order also as fatally defective. The plaintiffs alleged that the papers were necessary in the trial of the action; but the order required the defendants t<3 file them with the clerk “within thirty days prior to the next term of this court.” If the papers were to be used in the trial, and no inspection was necessary, the order should have required their production when the case was reached on the docket; if inspection before the trial was desired, such definite time and place as the law contemplates should have been designated for that purpose.' In McGibboney v. Mills, 35 N. C., 162, this Court affirmed an order of the lower court, requiring the plaintiff to file the bond sued on with the clerk for inspection “from 1 January, 1852, to 15 January, 1852”; but in Mills v. Lumber Co., 139 N. C., 524, it was held, in an opinion by the Chief Justice, that an order to produce and deposit certain papers in the office of the clerk was unauthorized. The Chief Justice very aptly said: “There is nothing in the statute which authorizes an order that the respondent be required to deposit the papers. In practice, this might prove oppressive and detrimental. The papers and books might be necessary in the conduct of the plaintiff’s business, and there is no guaranty of their safety when so deposited. All that the statute author *673 izes is an order that the papers be produced with sufficient opportunity to the other side to inspect the same and take a copy. Sheek v. Sain, 127 N. C., 272.” In Corpus Juris it is stated that in some jurisdictions a party cannot be required to deposit his papers in the clerk’s office, and North Carolina is classed among this number. 18 C. J., 1128. In the case at bar the order required that the papers be taken from the defendants before the term of court and deposited or filed with the clerk for an indefinite length of time upon the allegation that they were necessary in the trial. There was no suggestion that it was necessary to impound the papers to secure them against loss or to prevent the perpetration of a fraud. In these circumstances the presiding judge evidently misinterpreted the statutes upon which the order was made to rest, and inadvertently exceeded the authority conferred when, -during the examination of a witness, he undertook of his own motion to withdraw the issues from the jury, find the facts from the record, and render judgment as by default against the defendant while the controverted matters were still pending and unsettled. For these reasons it becomes unnecessary to consider the other questions discussed in the briefs. We hold, then, that the judgment against the American Eailway Express Company must be reversed, and that the matters in controversy must be determined as provided by law. Keversed.