Equitable Life Assurance Society v. Clark

80 Miss. 471 | Miss. | 1902

Oalhoon, J.,

delivered the opinion of tbe court.

We do not consider tbe constitutionality of § 927 of tbe code, as amended by tbe act of 1900, p. 136, because, assuming it valid, tbe order for tbe inspection of tbe books,, and tbe decree pro confesso and final decree following for $15,000, with interest, were unauthorized. Tbe “good cause” required by the statute as a condition precedent to an order for production or inspection of books, etc., was not shown) and tbe showing made for the decree pro confesso was insufficient to warrant it,' and the allegations of the bill are too vague, indefinite, and uncertain to justify a final decree. The act is very highly penal, and, if to be upheld as valid, it would require an extraordinary state of case to justify so extreme a measure as a pro confesso and final decree for failure to produce books, etc. The act authorizes the court to visit refusal to obey its order with the consequence of a pro confesso, but it would require an extreme case to maintain such exercise of discretion. Certainly this is not such a case. The bill itself states the inability of complainant to say how much she is entitled to, and prays discovery. It was answered, and full discovery made, and much testimony taken by depositions. Then complainant applied for an order for an inspection of books, which was granted upon the unsworn petition of her solicitor, which was not a sufficient showing to justify it. Her claim is that, as a participant in the profits of the insurance company, she believes she is entitled to a large sum — $10,000 or more. The amount is purely conjectural. She does not even give the grounds of her belief. The source of her information is not stated. No data whatever are suggested. She asserts a claim, and seeks access -to defendant’s record of its business covering twenty-three years to ascertain if her claim cannot be maintained.- The statute was not designed to establish such practice. It was intended ■to accomplish the proper purpose of enabling a complainanl; or plaintiff to secure the benefit of the showing of the-books and papers of the defendant in proper cases to promote the ends of justice. The power conferred should be' exercised with great caution to avoid invasion-of the rights of ■ defendants. Such caution was not -observed in this case. We will not undertake •to define the state of case in which an order-for inspection, etc., may be properly made-. • Each case must be determined by -its -own facts. Suffice it to say that the power conferred by the 'act is a very delicate one, and should-never be exercised excep"on gooduause shown of'the necessity for. -it to’promote -the ends !6f justice,-’and there the terms imposed should carefully- safeguard tbe rights of the party against whom the order is made. To permit the decree in this case to stand would shock our sense of justice. • ' ■

The final decree and pro confesso are .reversed, and the order for inspection of the books is set aside, and the cause remanded.