State, ex rel. Boston & Montana Consolidated Copper & Silver Mining Co. v. District Court of the Second Judicial District

71 P. 602, 27 Mont. 441, 1903 Mont. LEXIS 19

• Court: Montana Supreme Court
• Decided: February 16, 1903
• Docket: No. 1,909
• Status: Published

Opinions

ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

In November, 1902, an action was commenced in the district court of Silver Bow county by one Patrick Mullins, plaintiff, against the Boston & Montana Consolidated Copper & Silver Mining Company, defendant, to recover a three-fourths interest in the Comanche mining claim. The plaintiff claims that in 1893 he had a lease and bond on such claim from the Comanche Mining Company, which then owned the claim, and that by the terms of such lease and bond he had the option to purchase such claim at any time within a year for $200,000; that he sold an undivided one-fourth interest in his lease and bond, and thereafter, within the year, was, by fraud and collusion on the part of this defendant, the Butte & Boston Mining Company, one J. A. Coram, and plaintiff’s co-tenant in said claim, induced to sell for a small consideration the remaining three-fourths interest in said lease and bond, and that the defendant then became the successor to the Comanche Mining Company.

The complaint is lengthy, and assumes to set forth in detail the alleged acts of fraud and collusion, but the allegations set forth above are sufficient for the purpose of this decision. After the commencement of the action, plaintiff made an application for an order requiring defendant to permit plaintiff to examine and take copies of certain letters, letterpress copies of letters, maps, stope sheets, stope books, boobs of accoxint, and the original lease and bond executed to the plaintiff by the Comanche Mining Company, all of which are claimed to be in the possession of the defendant.. After notice, and upon hearing, the court made the order complained of. That order comprises nine sections or subdivisions and they are as follows:

“Ordered that the defendant herein produce for the inspection of the same by the plaintiff, and that it permit plaintiff to inspect the following:

“(1) All letterpress copy books of the Boston & Montana Consolidated Copper & Silver Mining Company containing any letters written by any of its officers from Butte, Montana, to the company or any of its officers or agents or J. A. Coram, between January 1, 1893, and August 30, 1893, but the right of the plaintiff to inspect such letterpress copy books shall extend no farther than to ascertain wliat copies of letters there are therein relating to the Comanche mining claim, or the acquisition of any interest therein by the defendant company, and as to such letters a complete inspection thereof.

“(2) All letters written to the company at Butte or to any of its officers or any of the officers of the Butte & Boston Mining Company concerning the Comanche mining claim, between January 1, 1893, and August 30, 1893.

“(3) All maps of workings of the company made in the year 1893.

“(4) All stope sheets and stope books showing ore extracted from the Comanche mining claim or the West Colusa or the Mountain View mining claim during the time from March 1, 1893, to August 10, 1893.

“(5) All stope sheets and stope books showing ore extracted from the Comanche mining claim since August 10, 1893.

“(6) All books of account showing transactions in connection with the Comanche mine, and particularly such books as show the amount and value of ore extracted from it, and expenditures made on account of it.

“(7) All books showing the cash account and the investment account of the defendant company for the year 1893.

“(8) All books and records of the Comanche Mining Company.

“(9) The lease and bond executed by the Comanche Mining Company to the plaintiff, Patrick Mullins, of the Comanche mining claim in the year 1893. * * *”

The relator thereupon made application to this court to have the order annulled.

Section 7, Article III, of the Constitution, provides, “The j>eople shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures/’' etc. Section 1810 of the Code of Civil Procedure provides : “Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in bis possession or under bis control, containing evidence relating to tbe merits of tbe action, or tbe defense therein. * * *”

It will be conceded that, in the absence of any statute, tbe district court, in tbe exercise of its inherent powers as a court of equity, could, upon a sufficient showing, make an order for discovery which would furnish plaintiff all the relief which he can obtain under Section 1810, above; that the legislative enactment added nothing to the power'of the court as a court of equity, but, on 'the contrary, apparently sought to confer on law courts the authority long exercised by courts of equity independent of statutory authority; and, in addition thereto, gave to Section 7, Article III, of the Constitution, a legislative construction defining the circumstances under which the inspection of the private papers and documents of one party by another will not be deemed an unreasonable search. We conclude, then, that the court — if an action was pending therein — had the authority, upon a sufficient showing, to make a proper order requiring the relator herein'to permit the plaintiff, Mullins, to make inspection and copies of such entries of accounts, documents, or papers in its possession or under its control as contain evidence relating to the merits of his action or the defense therein.

Our first inquiry, then, is: Was a sufficient showing made? The affidavits filed in support of the application for the order complained of did not contain any statement that an action was pending in the court at the time such application was made. Under Section 1810, above, the order for inspection can only be obtained from a court in xuhich an action is pending, or from a judge thereof; and in our view of the ease this fact must affirmatively appear from the face of the verified petition or affidavits upon which the application is based. We are further of the opinion that the application should, by express statement, or by apt reference to the pleadings on file, apprise the court of the nature of the action and the relief sought, in order that it may determine whether or not the evidence sought to be obtained by the inspection could, in any view of the case, be material or relevant to the issues. For its failure to show these facts, we consider tbe application insufficient to vest in tbe lower court authority to make any order of inspection.

If a sufficient showing had been made, the next inquiry is: Was the order made a proper order under the circumstances of this case, and within the purview of Section 1810, above ? Under the terms of that section only such papers, documents, etc., can be subjected to this search as contain evidence relating to the merits of plaintiffs action or the defense therein, as disclosed by the affidavits filed upon which the application for the order was made. A summary of the claims contained in those affidavits is to the effect that certain, letters passed between the officers and agents of the defendant company in Butte and its officers and agents and J. A. Coram and officers and agente of the Butte & Boston Mining Company in Boston, and that such letters contain statements relative to the acquisition of the C'o-manche mining claim, and, taken together, tend to show that such claim was acquired in the manner set forth in plaintiff’s complaint; and that letterpress copies of such letters were kept. It is further alleged that the defendant made maps in 1893, which show the work done on the Comanche claim, and also show work done on that claim through workings of the West Colusa and Mountain View claims; and, furthei’, that stope sheets and stope books were prepared and kept, which show the amount of ore taken from the Comanche mine and ore taken therefrom through workings on the West Colusa and Mountain View claims; and that defendant company kept and has books of account in which are kept the items of receipts and disbursements on account of each mine worked by it; and that it also has the books kept by the Comanche Mining Company, which show the transactions of that company with reference to its disposal of the Comanche claim. ' It is also claimed that the original lease and bond executed by the Comanche Mining Company to Mullins is in the possession of the defendant company. Upon this showing the district court made the order complained of.

Tested by the showing made and the provisions of Section 1810, above, we are of the opinion that the order made is alto-getber too broad in its provisions, and is void, as containing no limitation on the time within which such inspection should be made, as required by Section 1810, above. What remedy, then, has the defendant company? According to our views, to- the extent that the district court made its order without a proper showing, or, in the order made, embraced the inspection of any papers or documents which, under the terms of that section and the showing made in those affidavits, in the very nature of things could not contain evidence material or relevant to- the issues; and in making an order for inspection without limiting the time within which such inspection should be made' it exceeded its jurisdiction, and certiorari will lie to correct the error committed. In St. Louis M. & M. Co. v. Montana, Co., 9 Mont. 288, 23 Pac. 510, this court said, in speaking with reference to the provisions of the statute for an inspection of mining prop--erty: “The section of the Code under review does not empower any court or judge to grant an order that is fruitful of injustice or oppression. Whenever this is done, such action will exceed the authority that has been bestowed, and can be rightfully set aside.” The proceedings for the inspection of papers and documents are analogous to the proceeding to obtain an order for the inspection of mining property, and this court has held in St. Louis M. & M. Co. v. Montana Co., above; that certiorari will properly lie to correct an error made in improperly granting an inspection order in that case. In this, however, we are to be understood as speaking with reference to the particular facts of this case, as the technical record was all the district court had before it upon the application for the order complained of.

Section 1948 of the Code of Civil Procedure defines the extent of the remedy which may be had in this court: “When a full return has been made, the court or judge must hear the parties or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling or modifying the proceedings below.” The plaintiff below should be confined strictly to the rights to which he is entitled upon the showing made, and under the provisions of Section 1810 above, and at the same time the defendant company should be secure in the possession of its papers and effects against unreasonable searches.

Section 1 of the order complained of permits an inspection of all letterpress copy books of the Boston & Montana Company containing any letters written by any of its officers from Biitte to the company or any of its officers, or J. A. Coram, between January 1, 1893, and August 30, 1893, for the purpose of ascertaining what copies of letters there are therein relating to' the Comanche mining claim, or the acquisition of any interest therein by the defendant company. In our view of the case, this is altogether too much in the nature of a fishing expedition, and the order should have confined the plaintiff below to an inspection of such copies of letters in such letterpress copy books only as relate to the purchase of the Comanche mining claim, or the acquisition of any interest therein by the defendant company, and should not have permitted an inspection of all of the letterpress copies, in order to ascertain what letters there are therein of which cojfies are sought.

Section 2 permits an inspection of all letters written to the company at Butte, or to any of its officers, or to the officers of the Butte & Boston Mining Company concerning the Comanche mining claim between January 1, 1893, and August 30, 1893. Written to them by whom ? Manifestly by any person, whether an officer or agent of those companies or of either of them, or by an entire stranger. Certainly it could not be said that the Boston & Montana Company should be bound by any statements contained in letters written to* any of its officers or agents, or to the officers or agents of the Butte & Boston Company by disinterested third parties. The affidavits fail to' show wherein any of such letters could be material under any circumstances. , Section 3 permits an inspection of all maps of workings of the company, made in the year 1893. We cannot understand how this could be permitted under any view of the ease. Perhaps the plaintiff below would be entitled to copies of maps made in 1893 of the Comanche mining claim, or of any portion or portions thereof; but certainly he could not be entitled to copies of maps made by the Boston & Montana Company of workings in some other claim in no wise connected with the controversy between these parties.

Section 4 permits an inspection of stope sheets and stope books showing ore extracted from the West Colnsa and the Mountain View claims during the time from March 1, 1893, to August 10, 1893. If the stope sheets and stope books of those claims, or of either of them, show any ore extracted through the workings of those claims, or either of them, from the Comanche claim, to the extent only that such stope sheets and stope books do show this fact is the plaintiff entitled to such copies.

Section 6 permits an inspection of all books of account showing transactions in connection with the Comanche mine, and particularly such books as show the amount and value of the ore extracted from it, and expenditures made on account of it. This inspection, we think, should be limited to particular accounts and items in those books which show the facts mentioned,, and should not subject the defendant company to have such, books themselves thrown open in their entirety to perusal by the plaintiff. And the same may be said of Section 7.

Section 8 permits an inspection of all books and records of" the Comanche Mining CoiUpany. This company was in existence before the execution of the lease and bond to the plaintiff, Mullins, and the inspection should be limited to an examination of only those portions of the books and records as relate to Che-lease and bond to tire plaintiff or the sale of the Comanche mine-to the defendant company.

For the reasons herein set forth, the order of inspection made-by the district court on the 17th day of January, 1893, is annulled and set aside.

Annulled and set aside. ■