*1 S18 n plaintiff to failed and refused account to for and defend- wheat delivered to it which ASS’N WHEAT GROWERS’ TEXAS proceeds GOUGH. ant has there- sold and converted of, amount of to its own and benefit use $10,049.98. wit, has re- That defendant to Texas. of of Civil Court plaintiff informa- fused to furnish detailed April 2, 1934. handling- to the wheat or inform tion of the of where, when, termi- to said him and whom April 30, charges paid why and nal were were incurred, of names to disclose the and purchasers wheat; said that defendant of and records in showing all the facts- full of transactions and deducted said plaintiff of the cost from the amount due handling, insurance, freight, storage, and charge expenses marketing an additional and cent, proceeds.” per “gross resale plaintiff to obtain the That has endeavored necessary, information and has demanded him exhibit to that defendant (cid:127) writings all and records of showing association in which defendant-has the manner handled, pooled, and to and sold wheat purchasers there- inform him who were the prices paid. although of and the That de- showing records fendant has in detail wheat, handling Dooley dates of Underwood, Johnson, Fluff, the several therefor, sales, the amounts received it Amarillo, appellant. for plaintiff give refused desired infor- to Plainview, Baird, appellee. for M. J. plaintiff prays that mation. The defendant given said notice “that on HALL, Chief Justice. required discovery said defendant be Appellee Gough sued the associa- full make said cause and detail- and substance, tion, alleging,' m he entered handling of said its ed account wheat andt with the association into a contract by said defendant and others under the di- was author- which defendant the terms of of said defendant. That rection consent and produced by plain- the wheat market ized to required bring present defendant be plaintiff awas member of That the as- tiff. original all in said court records show- standing- good said sociation wheat, by ing grading of said whom said wheat contract delivered amounting defendant wheat age paid, stored the amount of was stor- twenty carloads. He about all detail what each of said cars, giving a list the railroad out sets any, expended charges, if were for and to numbers, alleges their date when paid. requir- That whom the defendant be delivered, together the wheat was with the produce same, court said and file stating delivery amount each showing price original at records what said grade That thereof. value defend- sold, sold, was to whom wheat fact price” upon it termed a “station ant set what accounting showing by full proposed it and so delivered to wheat grain belong- what how said records plaintiff settlement on that basis. make disposed ing to this was of. That has, ’ him refused to account to defendant That hearing- said on wheat so delivered settle his debt be entitled charged plaintiff illegally and with- and has pleadings and the evidence introduced charges” aggregat- “terminal relief.” charges $1,292.08. That such were- not duly wrong- . authorized-by verified contract and and has. were The at- is. interrogatories fully thereto made tached more defendant.. That .numerous specifically items, 1,341 as to the than bushels wheat received several quiring shipments transactions, for, set out in- have not been accounted defendant petition. $790. That value defendant has is of the
gig spondent answer, properly a verified The defendant refused to fix the amount filed supersedeas upon hearing of of the a the introduction without bond.” testimony, judge any an entered the trial by The Honaker Case was decided the prayed substantially granting the order relief Appeals, Second Court of Civil and the hold a dis- for in as demanded so far upon Smith, therein is based Hudson v. excepted covery. order to this Defendant App. 486; Krueg 63 Tex. Civ. S. W. 133 appeal. prosecuted this (Tex. App.) el v. Williams Civ. 158 W. S. provides: ; Story, Eq. “All trial courts 1052 2 §§ R. S. 2002 1218-1220. art. in the nature of bills entertain suits shall discovery, holding there are a few cases that grant relief therein ac- appeal may prosecuted be from such an usages equity. of courts of cordance with the prior order on the merits a a remedy of all cumulative oth- Such shall be judgment, according great weight final the remedies.” by as of equity cases, shown the decisions is lies that no the upon course, not been tried the ease Of judgment. until after final judgment has been no its merits and simply is The order “An therein. entered order entered pending interlocutory production a trial decree made is re garded interlocutory dis It does not the merits. and for of the cause on a mere as by plead pose presented subject ap all the issues not to a that reason peal equity practice ings per in such a case unless is nn * order. While by such lies from an order is statute. Such mitted that an case in one it has been held after final reviewable as an inter prosecuted [Samu an order involving such mediate order merits and can App.) S.W.(2d) (Tex. 25 Civ. els v. Finkelstein under a writ of review not taken where with 923], only in accordance that understand we the statute authorizes such a writ usages as held provided.” 1S8, and' of courts is 9 R. C. L. by appealable. not statute, “Unless allowed not lie from will Boyd, Burlap a statute for Bag v. & Co. In Southern discovery or the examination S.W.(2d) Judge, Tex. 38 120 District * n * trial witnesses before sought orders for man- a in which judge requiring the of books and against district damus except papers, they 'in supersedeas so far as discre amount of the latter fix tionary, statu claim for was a bond, there provisions plaintiff on the sale due commissions they products in others and a reviewable manufactured judgment.” or error accounting, the court entered 3 C. 496,§ in the like that entered in substance an order Bag commanding case, the Southern stated, instant For the reasons is dis- Company Burlap books, to deliver the rec- missed. documents, correspondence, etc., ords, to the Rehearing. On Motion for purpose the district court for the clerk of permitting rehearing In an extended motion for plaintiffs, their counsel and right insists that it had the inspect accountants, to and examine the same appeal and, searching persuasive after a copies to make such thereof deem- of the authorities cited review in the us proper, ordered that said opinion, contends that we are not books, correspondence, etc., records, remain supported by the decisions cited. In the al- the clerk of the court until ternative insist that the trial court abus- merits, trial of cause on its ed its discretion to such an extent as to au- possession upon from his the or- removed appeal. thorize Upon court. writ of der of the receding see no reason for We from our Supreme Court, Appeals, the Commission of original position, thq trial and if court has through Critz, Justice, speaking held that the discretion, appellant may proba- abused its was entitled relator remedy by ; bly mandamus but we do mandamus, but further said: “It is clear authoritatively not so hold. purely, order above set is that says appealable. terlocutory and therefore not 2002 that all trial R. S. art. Honaker, (Tex. 282 W. suits S. shall entertain nature of bills Co. App. discovery grant ref.). It follows that relief therein in ac- Civ. writ re- usages a writ of the courts of review where statute authoriz- cordance right only pro- equity. es where no vided.” preliminary A denying ceeding, While we believe legislative clearly na- in its determination *3 relief is provided by ture, in is that cases should and the rule Texas of statute, order of until that is done no lies from an express- description, statute exists. appeal. Appellant ly con- authorizes The motion is overruled. express authority for cedes that there is no deny- from or discovery. bill of exceptions in other there are some jurisdictions, we still hold especially in states separate exercising chancery exist, jurisdiction equity the rule express statu- will lie unless there et al. v. ROBINSON LANTRON authority. 496, 329, is said: “Unless In C. § of Texas. Court of Civil 'by statute, an lie allowed will not April from under a statute for be- or witnesses the examination of April ap- trial; but have been such orders held fore allowing pealable statutes right, affecting a substantial proceeding order in a af- from final fecting right, certain oth- substantial special statutory provisions.” has no such statutes as are men- proceeds: tioned the text. The writer “And orders for the papers, except of books in so far as discretionary, spe- statutory provisions jurisdic- cial tions, others reviewable judgment.” Innumerable authorities are cited sustaining footnotes this rule from dif- eleven including Supreme
ferent States; only excep- Court of the United being Virginia. Many tion West of these states have law' courts. In R. C. L. it is said: “An or- der regarded of books aas duction interlocutory order and for that rea- mere separate appeal of a not the un- son permitted in such case is less
by statute.” Reference authorities cited in footnotes sustains the announced in proceeds: text. The citation “Such an reviewable after intermediate order involv- ing merits and be taken can not