121 Ga. 250 | Ga. | 1904
This was a suit to recover damages resulting from the backing of water by a mill-dam maintained by the defendant.
Did the court err in refusing to compel the plaintiff to produce the deed ? We think he did. The deed was material evidence to show that the plaintiff had purchased the mill property of the defendant two years prior to the institution of the suit; and if plaintiff was entitled to recover, he could not recover for the years he had maintained the dam. The notice to produce was in the usual' form, and service was acknowledged by the plaintiff’s attorneys more than ten days before the trial. The defendant’s attorney stated in his place that he had reason to believe that the paper required was in existence and in the possession, power, or control of the plaintiff, and that it was material to the issue. The defendant had complied with all the prerequisites for an order from the court requiring the production of the paper. Hamby Mountain Gold Mines v. Findley, 85 Ga. 431; Parish v. Machine Co., 79 Ga. 682. It is stated in the brief of the defendant in error that the notice was defective in that it did not reqhire the production of the paper from “term to term,” and as the trial was had at the term subsequent to the term at which the plaintiff was asked to produce the deed, his obligation to produce the paper ceased with the term stated' in the notice. This was not a good objection. When the notice was served the- plaintiff was bound to produce the deed at the trial, if it was in his possession, and it wmuld be immaterial whether the trial occurred at the term succeeding the service of the notice or at a subsequent term. The refusal of the court to require of the plaintiff the production of the deed deprived the defendant of material evidence, and this error necessitates the reversal of the judgment denying a new trial.