Devier v. Economic Life Ass'n

Waterman, J. Plaintiffs sued as beneficiaries named in two policies of insurance issued by defendant company upon the life of one Hugh W. Devier, deceased. They alleged that the policies were in the possession of defendant. Thereafter, on June 5, 1897, the defendant filed a motion to compel plaintiffs to set out the terms of the contract. On August 5 following, plaintiffs filed a petition praying for an inspection of the books and papers of defendant company. Pending the hearing of this application the court sustained defendant’s motion, and ordered plaintiffs to set out the particulars of the contracts. September 22 plaintiffs amended their petition, but not iii the respects asked. With the record in this condition, on September 25 the court overruled defendant’s exception to the application for the inspection of books and papers, and ordered the production of such documents; and from this order the defendant appeals. No appeal lies from such an order. Cook v. Railroad Co., 75 Iowa, 169. After defendant’s appeal, and on October 4, 1897, plaintiffs filed a motion for judgment on the ground of the noncompliance of defendant with the order of the court which [684] required it to permit an inspection to be made of books and papers. This motion was overruled, and it is from this action of the court that plaintiffs appeal. On December 4, 1897, the plaintiffs amended their petition, and set out the matters required by the order of court made on defendant’s motion on September 8; The order for the production of the books and papers, as appears, was made before the present Oode went into effect. The ruling on the application for judgment was entered on October 4, 1897. Both parties treat the matter as governed by the Oode of 1897. Inasmuch as its provisions are substantially the same as the Oode of 1873 on the same subject, it is immaterial to which we refer, so we shall follow counsel, and treat the case as though governed by the present Oode. Section 4656 provides that, if a party fails to obey a rule requiring a production of books or papers for inspection, “the same consequences shall ensue as if the party had failed to appear and testify when subpoenaed by the party now calling for the books and papers.” And in section 4668 it is provided that, when a party fails to obey a subpoena, if the other party “shows by his own testimony or otherwise that he could not have personal knowledge of the transaction, the court may order his pleadings to be taken as true; subject to be reconsidered during the term of the court.” We are not willing to say that the trial court has no discretion under this section. But, however that may be, plaintiffs did not make the showing required, — of want of personal knowledge, — and for this reason their request for judgment was properly overruled. Defendant’s appeal will be dismissed, and on plaintiff’s appeal the action of the trial court is affirmed.