Smith v. Berry

169 S.W. 478, 159 Ky. 721, 1914 Ky. LEXIS 875

• Court: Court of Appeals of Kentucky
• Decided: September 23, 1914
• Status: Published

Opinion

Opinion op the Court by

Chiep Justice Hobson—

Overruling Motion.

Appellant has entered a motion that the court order a subpoena adduces tecum to be issued directing the clerk of the circuit court to transmit to the clerk of this court the depositions and exhibits in the action. In Rainey v. Rainey, 144 Ky., 502, when we had a similar motion before us, we said:

“Unless a view of the papers is important to a correct decision of the appeal, the court will not, except in extreme cases, order the original papers brought here. It will not in such cases order pleadings or small papers brought here, but only bulky parts of the record such as a book or the like, the copying of which will cause great and unnecessary cost or delay. The showing here does not warrant the writ. ’ ’

The showing made in this case is practically the same as in that case. No facts are stated showing the necessity of the order. The facts as to the size of the record and the cost of copying it, or the delay from so doing should be shown.

But it is also suggested that an inspection of some of the papers is necessary to a proper understanding of the case. Such papers will be ordered transmitted to this court; but they should be so identified that the clerk of the circuit court will understand from the subpoena what papers are to be sent here. Upon a different showing as to what papers are necessary for inspection by this court, the subpoena adduces tecum will be awarded, but upon the present showing no writ can issue. „

Motion overruled.