Whitman v. National Manufacture & Stores Corp.

The opinion of the Court was delivered by Mr. Justice Carter. *468 As a statement of this case the Court adopts, in the main, the agreed statement of the parties litigant, as set forth in the transcript of record. This action was commenced on the 17th day of November, 1934, by the service of a summons, complaint not served. No complaint has ever been served. The time for service of a complaint was stayed by order of his Honor, Judge Greene, as hereinafter set out. On the same day with the summons plaintiff served on defendant a notice of motion for the discovery of books and records accompanied by an affidavit assigning as a ground that records in the possession of defendant are necessary to enable plaintiff intelligently to prepare his complaint. On the 20th of November, 1934, defendant, through its attorneys, served on plaintiff’s attorneys a notice of special appearance without submitting to the jurisdiction and reserving all rights, demanding a copy of the complaint. On November 23, 1934; the motion was brought on for hearing before the Honorable G. B. Greene, presiding Judge, at which defendant, subject to the reservations contained in the notice of its special appearance, filed its return with affidavits and accompanying exhibits, contesting the plaintiff’s application for discovery on the grounds therein set forth. After hearing argument on both sides, Judge Greene on the same day filed an order ordering the defendant to discover and produce books and records as set forth in said order. Within ten days thereafter, namely, on November 30, 1934, defendant, still subject to the reservations contained in its notice of special appearance, served notice of appeal upon plaintiff’s attorneys, and served also at the same time a notice, still reserving the terms of its notice of special appearance, of motion before the Honorable C. T. Graydon, presiding Judge, to fix the amount of undertaking for a *469 stay of the order pending appeal to this Court, as required by Code 1932, § 786. On December 4, 1934, Judge Graydon filed an order fixing the amount for the appeal undertaking at $1,000.00. ' On December 8, 1934, defendant, still reserving the terms of its special appearance as noted, filed undertaking with surety in the sum of $1,000.00, conditioned, as required by Section 786, to obey the order of the Supreme Court upon this appeal. Within thirty days thereafter, to wit, on the 28th day of December, 1934, this case and the exceptions were served upon plaintiff’s attorneys. • We are satisfied with the conclusion reached by the Circuit Judge and for the reasons stated in the order issued by his Honor the exceptions, which we have duly considered in connection with the entire record, are overruled, and the said order is hereby affirmed. Mr. Chiee Justice Stabler, Mr. Justice Bonham and Mr. Acting Associate Justice Wm. H. Grimbaee concur.