199 Mo. App. 657 | Mo. Ct. App. | 1918
This is an action by attachment, originating in a Justice’s court, against defendant (a non-resident corporation), to recover a commission
After the case was. disposed of by the justice, it was appealed to the circuit court; and while the case was pending there, the parties, by written stipulation, waived a jury.
At the November term, 1915, plaintiff filed a petition for an order on defendant to produce the duplicate original contract between plaintiff and defendant (plaintiff’s copy having disappeared after being filed with the justice), and to also produce defendant’s books of account showing the exact amount realized by defendant from the disposition of said fountain. This petition was heard and sustained at said term. The duplicate original contract was furnished, but the books of account were not produced. On the contrary, the defendant at said term filed a motion to set aside and vacate said order, but this was overruled.
At the September'term, 1916, the court, on plaintiff’s motion for judgment by default against defendant because of its failure to comply with the order to produce, and after a hearing thereof, ordered that the motion for judgment by default be passed for the time being as the order to produce had failed to fix the time and place thereof; and thereupon the court ordered' the defendant within ten days from that date to “produce at the office of its counsel, Ellis & Yale, 314 Dwight Building, Kansas City, Missouri, for inspection and copy by plaintiff the book or books of the defendant showing, so far as the same do show, the full account in respect to a certain soda fountain claimed herein to have been sold to Trent-Palmer Drug Company, Talequah, Oklahoma, on or about March 13, 1906, and showing the ultimate disposition
Thereafter, and at said term, defendant filed a motion to vacate said order, but, upon a due hearing thereof, it was overruled.
At the September term, 1917, a year later, the trial was entered into before the court sitting as a jury. -In the progress of the trial, plaintiff introduced his evidence including the contract and his sale thereunder of the soda fountain in question at the price of $1250 and perhaps other evidence in relation to his cause of action. He then sought to prove what the defendant had received for it but as this evidence was hearsay, the defendant objected and was sustained. Not being able to show this, plaintiff introduced the orders to produce heretofore mentioned, and, upon a showing that they had not been complied with as to defendant’s books of account, thereupon moved the court “for judgment and its counsel from any further participation or hearing in this case.” The court ruled thereon as follows: “The motion for judgment for the amount sued for will be allowed.” To this the defendant objected and excepted. Thereupon the court entered a judgment reciting that “Court finds that defendant is indebted to plaintiff in the sum of” $478.54, and adjudging that plaintiff have and recover that sum of defendant and the sureties on its appeal bond, etc. The defendant duly appealed.
The first contention made by appellant is that the suit is, in reality, a proceeding in equity for an accounting, and that, therefore, the justice had no jurisdiction to entertain it and consequently the circuit
As the suit originated in a justice’s court, no written answer was required and none was filed, but in the absence of any disclosure as to what the defense would be, we must regard the case as containing an answer in the shape of a general denial.
If the original purchaser had paid the remainder due on the fountain, then, upon such payment, plaintiff would have been entitled to his commission; and upon the failure of the purchaser to pay the remainder of the purchase price, if the defendant had sold said fountain in foreclosure of its mortgage and received the money therefrom, plaintiff would be entitled to his commission on, at least, the net amount received
But, even if the case be one at law, the next contention is that the orders on defendant to produce its books are invalid and of.no effect; and furthermore that failure to comply with them does not justify the judgment that was rendered. The authority for a court of law to compel a party, at the instance of the opposite party, to produce books and papers is given
Considering then the face of the record as to these orders, we take up the question, not so much whether the court had authority to make them or whether it erred in making them, but whether, as applied for and made, they are sufficient to justify the court in rendering the judgment that was entered.
It will be observed first that sections 1944-1947, appear to deal with the production of books or papers, presumably in court, to be used and offered in evidence as to such matters as therein are material; while section 1948 provides for the production of same at a specified time and place to allow the other party an opportunity to inspect and copy. And the applica
But the petition for the orders to produce nowhere alleges that the books plaintiff desired to inspect would show such fact nor that such fact was desired. The petition alleges that the book accounts of the defendant “show or should show the account of the sale and final disposition of said soda fountain” and “shows or should show the exact amount realised by the defendant from the disposition of said fountain;” that “proof of the facts shown by the book or books of the defendant is necessary and material in the trial of this case;” that said books “contain evidence relating to the merits of this action” and are in the possession and control of the defendant, etc. The second order made by the court, whether on its own motion as stated in the record, or on plaintiff’s motion for judgment by default, or in fact on the original application, directs the defendant to produce “the book or books of the defendant showing, so far as the
The only thing appearing in either the petition for the order or in the orders themselves for which their production is desired is the showing of the amount ultimately realized. Nothing is said about a mortgage or that it was desired to ■ show that defendant accepted said fountain in lien of the debt therein as to everything else except this “ultimate” amount, the petition for the order contains nothing except the very general statement that the “books . . . contain evidence relating to the merits of this action,” and the orders themselves refer specifically to nothing except the amount- “ultimately realized.” So that there is no showing anywhere that the precise thing needed by plaintiff to complete his proof is contained in the books plaintiff desired to inspect, nor that, if the books, had been produced, they would have shown the needed fact. In Cummer v. Circuit Court, supra, it is said that applications for such orders “rest with great reason on very strict ground and they cannot be lawfully granted unless it is shown affirmatively and with' great certainty and distinctness that a real necessity exists;” also that it must appear from the application that the production (here it is inspection that is sought), is indispensably necessary” and ability to otherwise obtain such evidence must be negatived.” But here, even if we overlook the fact that the petition for the order merely states a conclusion that the books contain material and necessary evidence, without a showing of facts as to how and why the evidence is material and necessary, and does not allege that the evidence desired can be . obtained in no other way, nevertheless, the case discloses that the evidence specifically mentioned in the petition and sought to be obtained by the orders is not the evidence necessary to complete plaintiff’s case. This is true even upon the theory that by rea
The record conclusively shows that the judgment was a judgment by default because of the failure to comply with said orders. Section 1947, Revised Statutes 1909 providing the penalty for failure to obey does not expressly, or in so many words, authorize a judgment by default for failure to obey. If the disobedient one is a plaintiff (or perhaps a defendant with a counterclaim), the court “may nonsuit him,” or if he is a defendant, the court “may strike out any answer, or debar him from any particular defense in relation to which such books . . . were required to be produced, or may punish him as for a contempt.” The action of the court, however, is coercive to compel obedience to its orders and not to reward or compensate the other party. It is true, to strike out the answer in this case would be merely
Without reference to this last, however, we are of the opinion that, under all the circumstances, the judgment rendered herein was unauthorized and, therefore, it is reversed and the cause is remanded for a new trial.