Cobb, J.
1. By sections 5248, 5249 and 5250 of the Civil Code it is provided : “The several courts shall have power on the trial of any cause cognizable before them respectively, on notice and proof thereof being previously given by the opposite party or his attorney, to require either party to produce books, writings and other documents in his possession, power, custody or control, which shall contain evidence pertinent to the cause in question, under circumstances where such party might be compelled to produce the same by the ordinary rules of proceeding in equity.” “The notice required by the preceding section shall be in writing, signed by the party seeking the production of the books or other writings, or his attorney. .
[399]*399“If the plaintiff or his attorney, being so notified, shall fail or refuse to comply with such order, the court shall, on motion, give judgment against such plaintiff as in case of non-suit; and if the defendant shall fail or refuse to comply therewith, the court, on motion, shall give judgment against such -defendant, as in case of judgment by default.” In 1849 it was held by this court, that the provisions now embodied in the sections quoted did not apply to equity causes, for the reason that courts of equity do not award judgments of nonsuit nor judgment by default, and for the further reason that courts of equity have, independently of these provisions, ample power to compel the production of books and papers which may be necessary or material upon the trial of causes in that court. Berry v. Matthews, 7 Ga. 457. In 1887 the General Assembly passed what is known as the “uniform procedure act.” Acts 1887, p. 64. By that act the court of equity was abolished, and the superior court now has full power to grant complete relief to all suitors, applying in aid thereof either legal or equitable remedies, or both. All of the plaintiff’s rights can now be determined in one action. In the trial of any case before it, the superior court acts either as a court of law or of equity or of both, and uses all the machinery appropriate to the case to which the respective parties are entitled. See in this connection Manheim v. Claflin, 81 Ga. 129, and DeLacy v. Hurst, 83 Ga. 223. We think it in keeping with the spirit of the act above cited, and of the decisions of this court construing the same, to hold that the provisions of the sections above quoted are applicable to all cases, whether the relief prayed for he legal or equitable. If this were not true, a plaintiff in a suit founded on an equitable cause of action would be required to file a proceeding in the nature of a bill of discovery, in aid of his action, to require the production of writings in the defendant’s possession and material to his case. The spirit of the act of 1887 is, that all questions necessary to be decided shall he determined in one action, and the parties therein given such relief, and allowed to invoke such remedies, either legal or equitable, as they are entitled to.
2. Defendants’ counsel made response to the notice to pro[400]*400duce, and the court ruled that it was insufficient. Whereupon counsel for defendants stated that their clients were absent; that they had relied in good faith upon the sufficiency of the response already made; and requested that they be allowed until the following day to make further response. This the court declined to do, and ordered that further answer be made then and there. This counsel did, but the court ruled it still insufficient, and, on their failure to respond further, directed, on motion of plaintiff’s counsel, that judgment by default be entered against the defendants. It will be observed that the statute says, for failure to comply with such “order,” the court shall enter judgment, etc. The court has no power to enter a judgment by default against a defendant because he does not comply with the notice of the plaintiff to produce. It is for the court to say whether the defendant should be required to produce the papers and documents demanded by the notice. When the defendant fails to comply with the peremptory Order of the court, it is ample time for the judgment by default to be entered against him. The judgment entered against the defendant is not for a failure to comply with the notice, but for a failure or refusal to comply with the order of the court based on the notice; and such a proceeding is illegal until there shall have been a peremptory order of the court requiring the production of the documents. Parish v. Weed Sewing Machine Co., 79 Ga. 682; Stiger v. Monroe, 97 Ga. 479. As was said in the case in the 97 Ga., above cited, a judgment by default against a defendant is in the nature of a penalty inflicted for contempt of the authority of the court; and certainly such a harsh remedy should not be applied until the defendant has had a reasonable time to comply with the order to produce. There should be a formal order entered upon the minutes, and the party given a reasonable time, according to the circumstances of each case, to comply. To require the production instanter would be too great a hardship in some cases. In our opinion, the defendants in the present case were entitled to the postponement asked for. They relied in good faith on the sufficiency of the response already made, and stated reasons why they could not make further response until the following day. [401]*401Justice would require that they be allowed as much as one day to comply with the order of the court, before a judgment in the nature of a penalty for contempt of the court’s authority should have been entered against them, and they thereby cut off from thereafter making a defense which might have been in all respects full and complete.
3. But the order of the court in the present case was illegal for another reason. The notice served upon the defendants required the production of all “ contracts, agreements, deeds, and liens made between you, and also all deeds and muniments of title under which you claim the lot in dispute or any interest or part thereof.” We think the latter part of the notice was sufficiently definite. The rule is that the description is sufficiently definite if the party who is called on to produce or to give an inspection will be enabled to know what to produce or what he must give an inspection of, and if the court can determine the propriety of allowing the discovery or inspection sought. Applying this rule, a notice to produce all the titles and papers under which you claim title to a particular lot of land shows on its face that the inspection ought to be allowed. On the other hand, a notice to produce all the contracts, agreements, deeds, and liens made between the defendants was certainly too vague and uncertain in description and too extensive in range. It seeks a roving investigation into all the papers made between the defendants, without even intimating that an inspection, if allowed, would disclose anything to the plaintiff’s advantage. It was just such a notice as was given in the case of Parish v. Weed Go., cited supra, where the defendant was called on to produce “all books and papers touching business transacted in Georgia and all receipts by attorneys, etc., connected with its business in Savannah.” It was there held that this notice was too vague in description, and too extensive in range, to require a response.
Free access — add to your briefcase to read the full text and ask questions with AI
Cobb, J.
1. By sections 5248, 5249 and 5250 of the Civil Code it is provided : “The several courts shall have power on the trial of any cause cognizable before them respectively, on notice and proof thereof being previously given by the opposite party or his attorney, to require either party to produce books, writings and other documents in his possession, power, custody or control, which shall contain evidence pertinent to the cause in question, under circumstances where such party might be compelled to produce the same by the ordinary rules of proceeding in equity.” “The notice required by the preceding section shall be in writing, signed by the party seeking the production of the books or other writings, or his attorney. .
[399]*399“If the plaintiff or his attorney, being so notified, shall fail or refuse to comply with such order, the court shall, on motion, give judgment against such plaintiff as in case of non-suit; and if the defendant shall fail or refuse to comply therewith, the court, on motion, shall give judgment against such -defendant, as in case of judgment by default.” In 1849 it was held by this court, that the provisions now embodied in the sections quoted did not apply to equity causes, for the reason that courts of equity do not award judgments of nonsuit nor judgment by default, and for the further reason that courts of equity have, independently of these provisions, ample power to compel the production of books and papers which may be necessary or material upon the trial of causes in that court. Berry v. Matthews, 7 Ga. 457. In 1887 the General Assembly passed what is known as the “uniform procedure act.” Acts 1887, p. 64. By that act the court of equity was abolished, and the superior court now has full power to grant complete relief to all suitors, applying in aid thereof either legal or equitable remedies, or both. All of the plaintiff’s rights can now be determined in one action. In the trial of any case before it, the superior court acts either as a court of law or of equity or of both, and uses all the machinery appropriate to the case to which the respective parties are entitled. See in this connection Manheim v. Claflin, 81 Ga. 129, and DeLacy v. Hurst, 83 Ga. 223. We think it in keeping with the spirit of the act above cited, and of the decisions of this court construing the same, to hold that the provisions of the sections above quoted are applicable to all cases, whether the relief prayed for he legal or equitable. If this were not true, a plaintiff in a suit founded on an equitable cause of action would be required to file a proceeding in the nature of a bill of discovery, in aid of his action, to require the production of writings in the defendant’s possession and material to his case. The spirit of the act of 1887 is, that all questions necessary to be decided shall he determined in one action, and the parties therein given such relief, and allowed to invoke such remedies, either legal or equitable, as they are entitled to.
2. Defendants’ counsel made response to the notice to pro[400]*400duce, and the court ruled that it was insufficient. Whereupon counsel for defendants stated that their clients were absent; that they had relied in good faith upon the sufficiency of the response already made; and requested that they be allowed until the following day to make further response. This the court declined to do, and ordered that further answer be made then and there. This counsel did, but the court ruled it still insufficient, and, on their failure to respond further, directed, on motion of plaintiff’s counsel, that judgment by default be entered against the defendants. It will be observed that the statute says, for failure to comply with such “order,” the court shall enter judgment, etc. The court has no power to enter a judgment by default against a defendant because he does not comply with the notice of the plaintiff to produce. It is for the court to say whether the defendant should be required to produce the papers and documents demanded by the notice. When the defendant fails to comply with the peremptory Order of the court, it is ample time for the judgment by default to be entered against him. The judgment entered against the defendant is not for a failure to comply with the notice, but for a failure or refusal to comply with the order of the court based on the notice; and such a proceeding is illegal until there shall have been a peremptory order of the court requiring the production of the documents. Parish v. Weed Sewing Machine Co., 79 Ga. 682; Stiger v. Monroe, 97 Ga. 479. As was said in the case in the 97 Ga., above cited, a judgment by default against a defendant is in the nature of a penalty inflicted for contempt of the authority of the court; and certainly such a harsh remedy should not be applied until the defendant has had a reasonable time to comply with the order to produce. There should be a formal order entered upon the minutes, and the party given a reasonable time, according to the circumstances of each case, to comply. To require the production instanter would be too great a hardship in some cases. In our opinion, the defendants in the present case were entitled to the postponement asked for. They relied in good faith on the sufficiency of the response already made, and stated reasons why they could not make further response until the following day. [401]*401Justice would require that they be allowed as much as one day to comply with the order of the court, before a judgment in the nature of a penalty for contempt of the court’s authority should have been entered against them, and they thereby cut off from thereafter making a defense which might have been in all respects full and complete.
3. But the order of the court in the present case was illegal for another reason. The notice served upon the defendants required the production of all “ contracts, agreements, deeds, and liens made between you, and also all deeds and muniments of title under which you claim the lot in dispute or any interest or part thereof.” We think the latter part of the notice was sufficiently definite. The rule is that the description is sufficiently definite if the party who is called on to produce or to give an inspection will be enabled to know what to produce or what he must give an inspection of, and if the court can determine the propriety of allowing the discovery or inspection sought. Applying this rule, a notice to produce all the titles and papers under which you claim title to a particular lot of land shows on its face that the inspection ought to be allowed. On the other hand, a notice to produce all the contracts, agreements, deeds, and liens made between the defendants was certainly too vague and uncertain in description and too extensive in range. It seeks a roving investigation into all the papers made between the defendants, without even intimating that an inspection, if allowed, would disclose anything to the plaintiff’s advantage. It was just such a notice as was given in the case of Parish v. Weed Go., cited supra, where the defendant was called on to produce “all books and papers touching business transacted in Georgia and all receipts by attorneys, etc., connected with its business in Savannah.” It was there held that this notice was too vague in description, and too extensive in range, to require a response. The description in the notice must be with sufficient particularity to enable the court to determine the propriety of compelling the production sought, and it must also appear that the evidence to be thus acquired would be competent and tend to prove the existence of the claim made by the party requiring production. Speyers v. [402]*402Torstritch, 5 Robt. 606; Merguelle v. Bank, 7 Id. 77; People v. Rector of Trinity Church, 6 Abb. Pr. 177; Lynch v. Henderson, 10 Id. 345 (note); Condict v. Wood, 25 N. J. L. 319; Dyett v. Seymour, 3 N. Y. S. 643. The court could not tell whether the papers called for in the first part of the notice would aid the plaintiff in establishing its case; and it was absolutely impossible to determine whether all the contracts, deeds, etc., made between the defendants, would have been material evidence on the trial of the case. The order of the court, therefore, in requiring the production of all the papers called for in the plaintiff’s notice, was too broad, in not being limited to the documents which were sufficiently described. Hamby Mines v. Findley, 81 Ga. 431. It would have been competent, however, for the court to have specified such of the writings as should have been produced. It was no ground of objection to the entire notice that part of it did not describe the documents called for with sufficient particularity. Parish v. Weed Co., supra.
4. The court has no authority to grant a peremptory order to produce documents embraced in the notice, unless the party giving the notice makes oath, or his attorney states in his place, that he has reason to believe that the documents called for are, or have been, in existence; that they are not in the possession of the applicant; that they are in the power, possession, or control of the party notified; and that they are material to the issue. These requirements are made imperative by section 5253 of the Civil Code, providing how such a notice may be made available. See also Bryan v. Walton, 14 Ga. 185; Carlton v. W. & A. Railroad Co., 81 Ga. 531. Had the notice in the present case, therefore, complied with the law in other respects, failure to comply with the provisions of the section of the Civil Code above referred to would have made the judgment rendered erroneous.
Judgment reversed.
All the Justices concurring.