6 Alaska 52 | D. Alaska | 1918
Plaintiff, by her attorney, moves the court to make an order requiring defendant to grant inspection or furnish a copy of certain papers or documents, which, it is alleged, are in possession of defendant and contain evidence material to her case. The motion is not supported by affidavit, nor is it alleged how, or in what particular, or on what point said papers and documents contain material evidence. On the hearing of the motion defendant’s attorney stated orally that defendant has no such documents as are asked for. The usual practice is to support the application and the answer by affidavits; but in the absence of any rule on the subject I am not inclined to insist on affidavits either for the making by plaintiff of the application, or for the statement by defendant of nonpossession.
The papers and documents of which inspection is asked are-alleged as follows:
“First. Tbe written agreement between tbe defendant, tbe Alaska United Gold Mining Company, and tbe Alaska Mexican Gold Mining Company, providing for tbe joint operation under a single management of tbe mines of tbe said parties to said agreement.
“Second. The last three checks, for wages given to tbe plaintiff’s intestate, Nick Crinis, prior to bis death.
“Third. A statement made by plaintiff’s intestate, Nick Crinis, as to bis residence, bis status as a married man, and the number of children under 16, etc., made under tbe provisions of tbe Workmen’s Compensation Act of Alaska.
“Fourth. Tbe pay roll containing tbe name of tbe said Nick Crinis, last signed by him before bis death.”
If the documents mentioned in subdivisions 1, 2, and 4 do in reality exist, I can see how it is probable that they would contain evidence bearing upon the question óf employment or nonemployment of decedent by defendant; hut I cannot see how the document mentioned in subdivision No. 3, supra, could possibly contain evidence for the plaintiff. The statute says it may be offered by the employer, and when so offered “shall be held to establish” certain facts. Session Taws 1915, p. 156, second paragraph.
I think that under our statute plaintiff is entitled to an inspection of the documents mentioned in subdivisions 1, 2, and 4 for purposes of the trial, if such documents are in the possession of the defendant; but I have been uncertain as to the practice to be followed. Such being the case, the practice in Iasigi v. Brown, Fed. Cas. No. 6,993, commends itself as proper to be followed. There the court said:
“If the notice is made before the trial, the correct practice seems to me to he, after the moving party has made a prima facie case, to enter an order nisi, leaving it for the other party to show cause at the trial. He must then come prepared to produce the paper, if he fails to show cause. I think such an order should he made in .this case.”
See, also, 17 Cyc¡ p. 461, top.
The order, therefore, will be that defendant produce, at or before the trial, for inspection, the documents referred to in subdivisions 1, 2, and 4, or then and there show cause why he has not done so.
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