Robertson v. Greenwood Lumber Co.

Cook, J., delivered the opinion of the court. The state revenue agent filed suit in the circuit court against the Greenwood Lumber Company, seeking to re: cover taxes due the state, the levee district, and the city of Greenwood, for the privilege of carrying on the business of a lumber yard and dealer in lumber for the years [802] beginning May 1, 1915, and May 1, 1916, and from a judgment in favor of defendant, this appeal was prosecuted. This case has been before this court before, and upon the former appeal the judgment of the lower court sustaining a demurrer to the declaration was reversed (118 Miss. 769, 79 So. 820), and upon the remand of the cause defendant filed its pleas without leave of the court granted upon proper affidavit showing a good and substantial defense. Appellant filed a motion to strike these pleas for the reason that the affidavit required by section 755, Code of 1906 (section 538, Hemingway’s Code), had not been filed, and thereupon defendant, with leave of court, filed an affidavit that it had a meritorious defense — that is to say, that it had paid all privilege taxes required of it for the years in question. After the filing of this affidavit the court, over the objection of appellant, permitted defendant’s' pleas to be filed, and appellant contends that the affidavit of merit does not fully set forth the nature of the defense as required by statute, and the first assignment of error is ' based upon the action of the court in overruling appellant’s objection to the filing of the pleas. . While we think the affidavit of merit would have been in better form if it had set out in detail the amount of lumber sold and‘the amount of taxes paid during each of the years in question, we have reached the conclusion that it was sufficient to permit the pleas to be filed, and that the action of the court in this regard was correct. Prior to the trial in the court below, proceeding under the provisions of section 1003, Code of 1906 (section 723, Hemingway’s Code), appellant filed a sworn application for an order requiring the defendant to produce in court its books, documents, and papers, and permitting appellant, in the presence of and under the control of the court, to inspect and take copies- of such portions thereof as contained evidence of the annual sales of lumber by the defendant for the period beginning May 1, 1915, and ending May 1, 1917. This application set forth the basis of ap [803] pellant’s contention that appellee’s annual sales exceeded one-half million feet of lumber, and alleged that appellee’s books contained evidence of the amount of such sales, and prayed for an inspection thereof on such reasonable terms as might be imposed by the court. Appellee filed objections to this motion or application assigning numerous grounds of objection, and the application was denied. In the course of the trial, and after the examination of the general manager of the defendant corporation, who had been introduced by appellant as an adverse witness, the application was renewed and again denied. The action of the court in denying this application for an inspection of the books is assigned as error. The argument of appellee in support of this action of the court below is based entirely upon the ground that the application was solely for “fishing” purposes, and in support of this contention appellee relies upon the case of Assurance Society v. Clark, 80 Miss. 471, 31 So. 964. In that case the court said: “The bill itself states the inability of complainant to say how much she is entitled to, and prays discovery. It was answered, and full discovery made, and much testimony taken by depositions. Then complainant applied for an order for an inspection of books, which was granted upon the unsworn petition of her solicitor, which was not a sufficient showing to justify it.” Such is not the case here. The declaration in this case alleges with particularity and definiteness that appellee carried on and exercised the privilege of a lumber yard and dealer in lumber in the city of Greenwood,' and that during the two years covered by the suit its annual sales of lumber exceeded one-half million feet during each of such years, and that by force of the statute in such cases it became liable for the privilege taxes sued for. The declaration stated a good cause of action against appellee; the application for an inspection of its books stated the basis upon which the charge had been made that appellee’s annual sales amounted to one-half million feet, and alleged [804] that the books, papers, and documents in the possession or under the control of appellee contained evidence relating to the merits of the action and the defense interposed thereto by appellee. It was the duty of appellee to pay a privilege tax based upon the amount of its annual sales, and if it has done so it has nothing to fear from an inspection of its books. The determinative question involved was the amount of these annual sales, and, presumably, the books of the corporation would show that fact beyond question. In the case of Assurance Society v. Clark, supra, the court said that the statute 'authorizing an inspection of the books — “was intended to accomplish the proper purpose of enabling a complainant or plaintiff to secure the benefit of the showing of the books and papers of the defendant in proper cases to promote the ends of justice. . . . We will not undertake to define the state of case in which an order for inspection, etc., may be properly made. Each casé must be determined by its own facts.” We think this case is clearly one in which an order for the inspection of the books should have been made, and the correctness of this conclusion is emphasized by reading the evasive testimony of appellee’s general mánager. The next assignment of error is based upon the action of the court in refusing to permit the introduction in evidence of certain waybills found among the records in the offices of the .various railroad companies doing business in the city of Greenwood. These waybills purported to cover cars of lumber consigned to appellee, and pui’ported to show the origin and number of each car, the contents and weight of each car, the consignee and amount of charges on the car. It does not clearly appear from the record whether the waybill alone was offered in evidence, or whether the waybill was offered in connection with a receipt of consignee for the car covered by the waybill. If each car covered by the waybill offered is shown to have been actually delivered to the consignee named there [805] on, we think the waybill would then be admissible in evidence. For the error in denying the application for an inspection of the books, papers, and documents of the defendant company, this cause is reversed and remanded. Reversed and remanded.