Citizens Bank of Hattiesburg v. Tracy

82 So. 307, 120 Miss. 413

Opinion

Holden, J.,

delivered the opinion .of the court.

The remedy afforded by. section 1003, .Code of 1906 (section 723, Hemingway’s Code) is not exclusive. A party litigant in the circuit court may resort to the remedy given by the above section in order to compel the production of evidence to be used in the trial of the case, or he may file a bill in the chancery court for discovery in aid of his suit at law. The above-mentioned statute might furnish the same adequate relief that is obtainable by a bill of .discovery, but nevertheless it is only a cumulative or an additional remedy of discovery to that given by the law and our Constitution of 1890 (section 160). Of course, the auxiliary jurisdiction of the chancery court to- courts of law, as provided by the • Constitution, is not repealed by the said section 1003, Code of 1906, section 723, Hemingway’s Code..

The decree of the lower court overruling the demurrer is affirmed, and the cause remanded, with a leave of sixty days in which to plead further.

Affirmed and remanded.