37 Fla. 173 | Fla. | 1896
The appellants as plaintiffs below, citizens of Philadelphia, Pennsylvania, sued the appellees, citizens of Tampa, Florida, in assumpsit upon an account for work and labor, done and performed, and materials for the same furnished for the defendants, and for moneys paid, laid out and expended for the use of the defendants, and upon account stated; the declaration containing the usual money counts. Attached to the declaration was a copy of the itemized account sued upon.
That not only do your petitioners owe the plaintiffs nothing, but they are satisfied the plaintiffs are largely indebted to them, but on account of the destruction of their books as aforesaid they are unable to show the same by appropriate pleading unless they are permitted to see and examine the, books of plaintiffs in which the items ánd all the transactions between the plaintiffs and defendants, and upon which said suit is based. The petition prayed the court for an order compelling the plaintiffs to discover and produce any and all books and other papers or documents bearing record of the transactions upon which said suit is based,, or any of such transactions, as well as all books or documents which may be necessary to enable the defendants to make their reply or answer to said declaration, in order that the defendants might be able to make such reply or answer. ' The petition was verified by the affidavit of one of the defendant firm, in which he swore that the books, papers and documents whereof discovery is sought by the petition are under the con
Upon this petition the circuit judge made an order requiring the plaintiffs, on or before the 7th day of April, 1890, to produce and deposit with the Clerk of the Circuit Court in and for Hillsborough county, Florida, any and all books- of account, and other papers or documents, bearing record of the transactions upon which the said suit is predicated, or any of said transactions, as well as all books and documents which may be necessary to enable the parties defendant to make their reply or answer to said declaration.
The plaintiffs afterwards presented their petition to the judge alleging that they were merchants in the city of Philadelphia, Pennsylvania, doing an extremely large business, and had been so doing for a great number of years. That the books of account in which the account of the defendants appear contain a large number of other accounts extending over a period of eight or ten years. That said books are too valuable to them for the same to be sent out of their control or custody. That they are perfectly willing that any and every item of account on said books material to the defendants in making their defense to this'action should be inspected by said defendants, and their said books are open, and will be open at any and all times to the inspection of the defendants or any person competent to examine the same appointed by the defendants. That if the order granted by the
Afterwards, in May, 1891, the plaintiffs by their attorneys filed with the Clerk of the Circuit Court a written notice of their refusal to comply with the order made by the judge for the deposit by the plaintiffs of their books of account with said clerk. Thereupon the Clerk of said Circuit Court, on May 4th, 1891, entered an order dismissing the jjlaintiffs’ suit, and adjudging to the defendants their costs taxed at; the sum of ten dollars. From this judgment the plaintiffs (prior to the adoption of the Revised Statutes) have taken their statutory appeal.
The extraordinary order of the Circuit Judge, requiring the plaintiffs, residents of the city of Philadelphia, to ship all of their books of account that may contain any entry appertaining to the defendants, to Florida, and to deposit them with the Clerk of the Circuit Court at Tampa, to be inspected by the defendants, for the alleged purpose of enabling the defendants to frame their pleadings to the plaintiffs’ declaration, has no foundation in law or the practice
This rule has evidently been copied from the rules of practice of the Supreme Court of the State of New York, as it embodies substantially and almost literally the provisions of rules 14, 15, 16 and 17 of the New York Supreme Court Rules, found at page 700 of Voorhees N. Y. Annotated Code, 10th edition (1871). The courts of New York in passing upon this rule say that “an application for discovery of books and papers must specially state what information is wanted, and that the books or papers referred to contain such entries. And this must be stated upon positive affirmation, and not on mere information and belief; and that the uniform course of decision has been against any attempt to use this power of the court for the mere purpose of hunting for evidence.” Walker vs. Granite Bank, 44 Barb. 39. And again in Opdyke vs. Marble, Ibid, 64, it is said: “Parties are not allowed to fish for evidence in the private books of account of others, who are parties to an action, upon a simple guess that there may be some entry that will help their case.” And again in Mora vs. McCredy, 2 Bosw. (15 N. Y. Super. Ct.) 669, it is said: “It may be very much desired by a defendant to know, before he answers, what facts the plaintiff may be able to prove, and what admissions or evidence, statements and accounts rendered by him to the plaintiff may contain; .and such knowledge might, perhaps, serve as a useful precaution, admonishing the defendant what he may not, with safety to his reputation, aver or deny; but such considerations are no reasons for compelling a discovery, to enable defendant to answer. * * An
The application of the defendants here contained not a single element that entitled them to a discovery or inspection of the plaintiffs’ private books of account for the alleged purpose of enabling them to formulate-such pleas as were necessary to raise the proper issues to protect their rights fully in the case. No facts are-stated or shown as to how or why an inspection of the-plaintiffs’ books are in anywise necessary to the formulation of their pleas; neither is it affirmatively stated that said books do in fact contain any entries that will assist the defendants to formulate their pleadings; neither are any specific books or papers designated in which such entries are to be found; neither is there-any allegation to show what the nature and character of the supposed entries in the books are, if any. Neither is there anything shown that entitles the defendants to any inspection of all of the plaintiffs’ books.
Filed here with the papers in the case is a. detached paper, forming no part of the certified transcript of the record on appeal, that purports to have been signed by the counsel for the appellants, in which he certifies that this entry of the judgment of dismissal by the clerk below was done at his motion and request. Fortunately for the appellants in the cause we can not consider this paper because of its not forming any part of the record that is open to us; otherwise we should have to apply the usual rule, that a party plaintiff can not be heard upon
The judgment entered by the clerk' dismissing the cause at plaintiffs’ cost, and the orders of the Circuit Judge requiring the plaintiffs to deposit their books of account and other papers and documents with the Clerk of the Circuit Court of Hillsborough county, are reversed and set aside, with directions for such further proceedings in the cause as shall be proper and consonant with law and the rules of practice.