| Ill. App. Ct. | Dec 11, 1902
delivered the opinion of the court.
The alleged offense of which the appellant was found guilty, and for which sentence of imprisonment was pronounced against him, was contempt of court, “ by reason of his failure and refusal to obey the said subpoena duces tec am served upon him.” The subpoena, in terms, commanded plaintiff in error to produce before the grand jury divers books of the firm of which he was a member. It does not appear from the report of the grand jury to the court what the specific charge against Henry H. Fuller was; nor whether the books called for contained anything pertinent thereto; nor does it appear from the record that prior to the issuing of the subpoena any showing whatever was made that the books commanded to be produced contained any matter pertinent to any investigation which the grand jury was engaged in. Section 9 of chapter 51 of the statutes is as follows:
“ The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.”
In First Nat. Bank v. Mansfield, 48 Ill. 494" date_filed="1868-09-15" court="Ill." case_name="First National Bank v. Mansfield">48 Ill. 494, it was objected that the trial court erred in refusing to compel the appellee to produce his account books. .The Supreme Court say:
“The objection is not well taken, inasmuch as no foundation is laid upon which to base the motion. The twelfth section of the practice act declares that ‘ the several circuit courts shall have power, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties or either of them to produce books or writings in their possession or power, which contain evidence pertinent to the issue.’ In this case there was no notice given to produce the books, as the statute requires, nor was there filed any affidavit proving that the books contained any evidence material to the issue. These are both required by the statute, and there was no error in refusing to require their production.”
It will be observed that the language of the present statute is, “ The several courts shall have power,” etc., thus including all courts. See also, Roche v. Day, 20 Brad. 417, and Lester v. The People, 150 Ill. 408" date_filed="1890-01-21" court="Ill." case_name="Lester v. People">150 Ill. 408. In the last case the court, commenting on - a motion to compel the production of books, say:
“ The plaintiff, in his motion and affidavits in support thereof, failed entirely to show that the books of the defendants, which he asked to inspect, were required for any purpose of evidence in the case. ”
With reference to section 9, above quoted, the court say :
“ Under the statute quoted the court has power to compel the production of the books of a party, upon proper showing that they contain entries tending to prove the issues.”
The issuing of the subpoena duces tecum without any showing that the books which plaintiff in error was commanded to produce contained anything pertinent or material in respect to any matter undergoing investigation before the grand jury, was error.
In Lester v. The People, supra, the trial court fined Lester for contempt of court, in refusing to obey the order of that court to produce his books. The Supreme Court held that the order was unauthorized by section 9 of the statute, and that Lester was justified in disobeying it, and reversed the judgment imposing the fine. In the present case the subpoena which plaintiff in error was fined for disobeying was, as we have shown, unauthorized by section 9, and plaintiff was warranted in refusing to comply with it.
The judgment will be reversed.