Hunton v. Hertz & Hosbach Co.

Grant, O. J. (after stating the facts). The case appears to -have been submitted by counsel, and in the instruction of the court, upon the theory that the authority conferred upon the commission men by the deceased was material. This authority was contained in letters which passed- between the deceased and the commission men.. Mr. Morris R. Tousey was a witness for the plaintiff, and upon cross-examination was asked to produce the correspondence. The witness admitted the letters were in court, and in the possession of his counsel. His counsel stated that they were ready to produce them, if so ordered, but denied that they were material. The court declined to order their production, on the ground that it had not the power; that the proper course for the defendant was to issue a subpoena duces tecum. The court was in error. When written documents are in court, it is in the power of the court to order their production for examination, and for admission in evidence if found to be material. The only purpose of the subpoena duces tecum is that the documents may be produced in court. When they ai’e in court, in the hands of the parties or their counsel, the court should order their production. Powers v. Pussell, 26 Mich. 179. Judgment reversed, and new trial ordered. The other Justices concurred.