Harris v. Richardson

LOVELY, J. This action is brought to recover damages for defendant’s alleged breach of the conditions of a contract to construct a brick office building for plaintiff according to plans and specifications attached thereto. Defendant answered, claiming that he had erected the structure in a proper manner, according to the terms of the contract, and according to plaintiff’s instructions from time to time; also that the building was duly inspected and accepted by plaintiff. Before the necessary reply to the new matter was served, plaintiff, upon affidavits, moved the court for an order upon defendant to allow him to inspect and take a copy of the written specifications attached to the building contract, in his hands, which had been referred to in the answer, and for leave [354] to serve an amended complaint or reply after such inspection, as he might be advised. • The substance of the affidavits of the moving party was that plaintiff did not have the information which the specifications would afford, and which would be necessary to amend the complaint, or properly to reply to the new .matter in the answer. The court, at the hearing, ordered that plaintiff be permitted to inspect the specifications or that defendant give him a copy thereof, and further ordered that plaintiff have fifteen days after such inspection or the furnishing of such copy within which to prepare and serve a reply of an amended complaint as he might be advised. From this order, defendant appeals. This order was granted by the court under section 5750, G. S. 1894, which is as follows: The court before which an action is pending, or a judge thereof, may order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document or paper in his possession or under his control, containing evidence relating to the merits of the action, . of the defense therein. It is insisted in this review that the court had no authorit)'- to afford the relief granted, for the reason that, the reply not having been served, the action was not pending. Without reference to authorities which have been cited from other states, which we do not think apply, we have no doubt whatever that in the furtherance of justice the court, in the exercise of its discretion, at any time after an action is commenced and complaint served, before issue is joined, may give the relief provided for in the statute, whose object is plain, clear, and salutary. The possession of documents or books that are necessary to enable a party, after the commencement of an action, to further prepare his pleadings or evidence for trial, was intended to be thus afforded him, and the court was authorized, under such restrictions for the protection of the adverse party as are necessary, to make the order it did. Upon the showing made in this action, the discretion of the trial court was properly exercised in a wholesome and proper manner. This cause was submitted upon briefs; the plaintiff asserting that it was an appealable order, which was not denied or discussed by re [355] spondent. We take occasion, however, to say that we have no doubt that, if the question of procedure here suggested was presented again and challenged, we should hold that such order could not be reviewed in this manner. .It is not a provisional remedy, like injunction or mandamus; neither is it an order affecting the substantial rights of the parties in the sense in which that term is used in the statute authorizing appeals (G. S. 1894, § 6140), but rather an interlocutory direction occurring during the trial, which should not justify a complete suspension of the proceedings pending review in this court. Order affirmed.