Marion National Bank v. Abell's Adm'r

88 Ky. 428 | Ky. Ct. App. | 1889

JUDGE BENNETT

delivered tiie opinion op the court.

The appellee, as the administratrix of her deceased husband, W. I. Abell, filed her petition in equity in the Marion Circuit Court against J. C. and H. B. Phillips as the surviving partners of her husband, in which she sought to set aside a settlement of the partnership business, made between the surviving partners and W. I. Abell’s committee, Cameron, who was appointed a short time before the death of Abell, and to recover a large balance due Abell’s estate as profits arising from said partnership business. It was claimed that these profits grew out of the partnership business that was conducted in Lebanon and other places. The defendants put- in issue the matter of profits and that Abell was a partner in any place except in Lebanon.

After filing the petition, the answer, reply and rejoinder, the appellee, Mrs. Abell, filed an affidavit in the case, in which she stated that her husband and the defendants did business as partners under different names; sometimes under the firm name of Phillips & Bro.; sometimes under the firm name of G-. B. Phillips; sometimes under the firm name of Gf. B. Phillips & Co.; and probably under other firm names; that they kept accounts with the appellant, and with its predecessor, whose books were in the possession of the appellant, in each of said firm names; that she had no personal knowledge as to how said accounts were kept; that she had employed expert book-keepers to examine said accounts, that it was necessary for the preparation of her case that they should examine them, but the bank officers refused to let her experts make the-examination. Upon the filing of this affidavit, the court issued a rule against the appellant to show cause why it should not allow the examination to be made ; its response-denying the appellee’s right to make the examination was overruled and the rule made absolute, and the-appellant superseded and appealed to this court.

It seems to be well settled, that the court, in behalf of a party to an action, may, by rule, compel such party’s adversary to produce into court any documents that he may have in his possession, to which such party has an exclusive right or a right in common with his adversary, if it appear that such document is material to the maintenance of his contested rights.

Also, a person, preparatory to suing his adversary on documents in his adversary’s possession in which he has an exclusive interest or an interest in common with his adversary, may maintain an action in the nature of a bill of discovery against him, in order to compel him to produce them into court, to be delivered up to him if his right to them is exclusive, or to obtain a copy of them if his right to them is in common with his adversary.

Also a party to a suit may require, by the court’s rule,, his adversary to produce, not merely documents upon which suit may be brought, but letters written by him folds adversary, for the purpose of using them as evidence of a contract between them.

Also, a party to a suit may, by the aid of the court’s rule, compel a person, not a party to the suit, to produce into court any documents in his possession to which such party has either an exclusive right, or right in common with his adversary or other person, proper orders being taken for the preservation of such documents, and the restoration of them to the persons who are required to surrender them, and who have a right to their custody.

Here it is not claimed that the appellee has any right, title or interest in the books of the bank. All that is claimed is, that said firms, under their various firm names, made deposits in the bank, and checked on them from time to time; that the appellee does not know how these-accounts stand, nor the number of firm names that appear on the books of the bank as having had dealings with it, but that the books will show these things, and she wishes experts to overhaul them and report to her. These officers of the bank are competent to testify to all these things. "When they give their depositions, if they should be taken, either side may compel them to produce the bank books, and submit them to the inspection of the parties themselves and their attorneys, or either of them, for the purpose alone of inspecting the accounts between the bank and said firms; also, the officer testifying may be compelled to give a full statement of the accounts, item by item, as they appear on the books, and to file with his deposition a transcript of said accounts. In this way, which is the plain way pointed out by the common rules for the production of evidence, the appellee can obtain the whole truth relative to the firm’s transactions with the bank, which is all that she is entitled to. No one ever heard of a witness being ruled to make known to either party what his testimony would be until after the ease was put under investigation, and he put upon the witness stand. We see no good reason for making him submit his books to either party, for his inspection, in advance of tbe time that he may be required to introduce them as witnesses in the case.

The appellant had the right to appeal from the judgment making rule absolute. The judgment is reversed, with directions to dismiss the rule.