29 Mont. 363 | Mont. | 1904
delivered tbe opinion of tbe court.
On July 25, 1903, an action was commenced in tbe district court of Silver Bow county, Montana, by one E. B. Mendenhall, plaintiff, against T. M. Hodgens and T. D’enoon, copartners doing business under tbe name of tbe Copper State Fruit Company. To tbe original complaint filed, tbe defendant Hodgens interposed a demurrer, which was by tbe plaintiff confessed, and thereafter, on November 2, 1903, an amended complaint was filed. Tbe purpose of tbe action is to recover damages alleged to have been sustained by tbe plaintiff, Mendenhall, by reason of tbe alleged breach of a contract on tbe part of tbe defendants. Tbe complaint sets forth in detail tbe terms and conditions of tbe contract, and tbe particulars in which tbe plaintiff was damaged by tbe alleged breach.
On November 3, 1903, and without further appearing in the matter, tbe defendant Hodgens filed in tbe district court an application for an order requiring tbe plaintiff to permit tbe defendant Hodgens to examine and take copies of certain documents and writings designated in tbe application as documents and writings used in evidence upon tbe trial of tbe case of tbe state of Washington against EL B. Mendenhall, and designated therein as Defendant's Eixhibits 3, 4 and 5, and Plaintiff's'Ex-
Tbe plaintiff filed written objections to tbe application for tbe order of inspection, for tbe following reasons:
“(1) Because tbe affidávits in support of said application are insufficient, in tbat they do' not contain any statement that an action is pending- in tbe court in favor of tbe plaintiff and against tbe defendant, and for tbe further reason tbat said affidavits do not apprise the court of tbe nature of tbe action and tbe relief sought, in order tbat it may determine wbetbe'r tbe evidence sought to be obtained by tbe inspection could, in any view of tbe case, be material or relevant to tbe issues.
“(2) Because tbe affidavits in support of said application fail to state any facts or circumstances showing tbat tbe letters or documents sought to be inspected by tbe defendant concern tbe defense of tbe defendant, but, on tbe contrary, said affidavits affirmatively show tbat such letters or documents, if pertinent at all,, have reference solely to tbe plaintiff’s case.
“(3) Because it is not shown tbat said letters or documents, or any of them, sought to be inspected, are material to any' issue which has been or may be raised by any pleading in any case, or tbat the same, or any of them, are necessary to enable tbe defendant to make a defense, or to' aid him in framing bis answer or other pleading.
“(4) Because no particular description of tbe letters or documents or their contents are set out in tbe application, or tbe .affidavits in support thereof.
“(5) Because it is not shown in tbe said application what particular information or evidence defendant desires to obtain, nor is it shown tbat any of said letters or documents contain any such information, if produced.
“(6) Because it is not shown tbat the documents are or would be admissible in evidence on behalf of tbe defendant upon tbe trial of any issue in any cause, and it is not shown tbat tbe same would be admissible as evidence under any circumstances.
*367 “(7) Because there are no facts or circumstances stated showing the necessity for the production of said documents at this time.
“(8) Because it is not shown that the defendant has made or intends to make any defense to said action, for the reason that it does not appear that any answer has ever been filed in the case., or ever will be filed by the defendant herein; and for the further reason that it does not appear that the defendant has a good and meritorious defense, or any defense, to- said action.”
• Thereafter, on November 21, 1903, the application was heard by the court; and, in addition to the moving papers, the defendant Hodgens introduced in evidence the complaint and amended complaint in the action of Mendenhall v. Hodgens, and rested. The court thereupon made an order overruling the plaintiff’s objections, sustaining the application of defendant Hodgens, and directing that plaintiff permit an examination and inspection of the writings, and the making of copies thereof, on or before November 28, 1903, at 12 o’clock m. Plaintiff thereupon made application to this court for a writ of review to annul such order of inspection.
The same question presented here came before this court in State ex rel. Boston & Montana C. C. & S. M. Co. v. District Court, 27 Mont. 441, 71 Pac. 602, 94 Am. St. Rep. 831; and it was there held that the moving papers in the application for the order — in this instance, the motion and affidavits — must show affirmatively that an action is then pending in the district court. It was also-said: “We are further of the opinion that the application should, by express statement, or by apt reference to the pleadings on file, apprise the court of the nature of the action and the relief sought, in order that it may determine whether or not the evidence sought to be obtained by the inspection could, in any view of the case, be material or relevant to the issues. For its failure to show these facts, we consider the application insufficient to- vest in the lower court authority to make any order of inspection.” The reason for the rule there
Section 1810 of the Code of Civil Procedure, under which this application is made to the court below, provides: “Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any documenc or paper in his possession or,under his control, containing evidence relating to the merits of the action, or the defense therein.” The provisions of this section are obviously intended to enable a party to an action then pending to obtain an inspection of writings in the possession or under the control of his adversary, provided the party applying for the inspection in good faith believes he has a meritorious cause of action or defense, and provided further that those writings, contain evidence relating to the merits of the action, or to the defense therein; and the district court, before making an order of inspection, must determine from the' showing made that an action is pending ; that the writings sought to be inspected do in fact contain evidence competent to be introduced upon the trial, and material and relevant to the issues in controversy, or necessary to enable the moving party to frame his pleading or prepare his cause for trial. In this instance it was impossible for the lower court to have reached any conclusion with reference to these matters. There is no allegation that an action is pending, and, taking the view most favorable to defendant Hudgens, and in conformity with the contention of the respondent here — that the original and amended complaints were before the court as evidence of the pendency of an action — it must be apparent at a glance that such a showing is wholly insufficient. The mere fact that a complaint -is on file in court is hardly sufficient proof
There is an entire absence from the application and affidavits of any allegations showing the - necessity for the inspection. The portions of the affidavits quoted above contain the only allusions to- the subject, and no facts whatever are there stated, but only the bald legal conclusions of the affiants that such inspection is necessary. This is wholly insufficient. It is a matter for the court to determine from the facts set forth whether such necessity exists as is contemplated by the statute, for it is only under such conditions that the right of privacy must give way to- the dictates of public policy. The applications, including all the moving papers, must be sufficient to invoke or set in motion the jurisdiction of the court to which the application is made; otherwise the court is without power to make the order petitioned for. In this instance it is wholly insufficient in the particulars herein designated, and the order of inspection made on November 21, 1903, is annulled and set aside.
Order annulled.