Owyhee Land & Irrigation Co. v. Tautphaus

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The ruling of the circuit court in entering the default against the plaintiff in error was based upon section 724 of the Revised Statutes, which reads as follows: “In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a [549] plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default.” This section of the statutes plainly requires that, before a party to an action at law may be held to be in default for failure to produce books or writings in Ms possession, there must have been an order of the court, or, in other words, that, before he shall be compelled to produce such evidence under the penalty of the statute, there must first be a judgment of the court upon the question whether or not the evidence so sought is pertinent to the issues, and ought to be produced by him to whom the order is directed. Such is the language of the statute, and the reasons why it should be so are too apparent to require extended comment. The purpose of the statute is to apply to actions at law the remedy which in equity is afforded by a bill of discovery. In Boyd v. U. S., 116 U. S. 616, 631, 6 Sup. Ct. 524, 29 L. Ed. 746, Mr. Justice Bradley, after commending the wisdom of congress in restricting this proceeding to “cases and under circumstances” where the parties might he compelled to produce the books and writings by the ordinary rules of procedure in chancery, said: “The court of chancery had for generations been weighing and balancing the rules to be observed in granting discovery on bills filed for that purpose in the endeavor to fix upon such as would best secure the ends of justice To go beyond tbe point to which that court had gone may well have beei thought hazardous,” In Hylton's Lessee v. Brown, 1 Wash. C. C. 298, Fed. Cas. Ho. 6,981; Mr. Justice Washington said: “The remedy provided by the act of congress is merely cumulative; and, to save the time and expense of a bill of discovery, it enables this court to do, in a summary way, what they might do if a bill of discovery were filed on the equity side of the court, and no more.” In Finch v. Bikeman, 2 Blatchf. 302, Fed. Gas. Ho. 4,788, the court said: “It is plain, from the language of this statute, that congress did not intend to vest in parties litigant an unrestricted right to all written evidence in the possession of an adverse party which might be pertinent to an issue in a trial at law; the qualification being explicit that the right is allowable only in cases and under circumstances in which the court of chancery, hy the ordinary rules of proceeding in that court, would compel the production of boobs and documents.” In Triplett v. Bank, 3 Cranch, C. C. 646, Fed. Cas. No. 14,178, the court refused to malte an order, “not being satisfied that the books contained any matter pertinent to the issue.” But it is unnecessary to cite authorities upon a proposition which is so plain. When we consider the cases and circumstances under which discovery may be had in equity, it is clear that the remedy afforded by the statute can only be secured upon a proper application before the court, indicating the nature of the books or writings that are sought to, be produced, and showing that the evidence sought to be obtained is material to the case of the applicant, and thereupon obtaining the judgment of the court directing its production. Brown v. Swann, 10 Pet. 497, 9 L. Ed. 508; Bell v. Pomeroy, [550] 4 McLean, 57, Fed. Cas. No. 1,263; Vaughan v. Railroad Co., 4 Sawy. 280, Fed. Cas. No. 16,897. The further question is presented whether the plaintiff in error made upon the trial of the cause timely and proper objection to the motion for a default. It is contended that the objectionwasnotplaced upon the ground that an order of the court had not been first obtained in accordance with the motion, and that thereby that ground of objection was waived. The record shows that the plaintiff in error objected to the granting of the motion on the ground that the defendant in error “had waived the same by not urging it.” This we think was sufficient. The notice stated that on March 12, 1900, the defendant in error would apply for the order. He failed to do so, and by such failure he may well be said to have waived his right to pursue the remedy afforded him by the statute. When on the trial of the cause he moved for a default, objection was properly made on the ground that all rights under the notice had been waived by the failure of the defendant in error to procure the order, or to present his motion at the time mentioned in the notice, and in the manner contemplated by the statute. In this case the trial was had before the circuit court in Idaho, while the home office of the corporation, where its books and records were kept, was in Providence, R. I. After the case went to trial there was no time in which to send for such evidence. The judgment must be reversed, and the cause remanded for a new trial.