Doe v. McDowell, 50 N.C. 391, 5 Jones 391 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 391, 5 Jones 391

Doe on the demise of JAMES J. MAXWELL v. R. J. McDOWELL.

This Court will not pass upon the propriety of discharging a rule for the production of papers, under the 82nd section of 31st chapter of the Rev. Code, unless the facts are stated upon which the application is based.

An affidavit, produced to the Court below, is not a statement of the facts necessary to sustain such an application, but is only evidence offered to enable the Court to ascertain the facts. (Wallace v. Reid, 10 Ire. Rep. 61, eited and approved.)

Tins was a motion, made before SauNdees, J., at the Special Term, June 1858, of Mecklenburg Superior Court, in an action of ejectment, for a rule for the production of papers.

The application was based upon the following affidavit:

“ James J. Maxwell maketh oath, that he is advised, and believes, that the original deed, made by Cyrus Williamson to the defendant, and under which he is informed the defendant claims the land in controversy, contains evidence pertinent to the issue, and which affiant believes will be material for him on the trial of this suit. Affiant further swears, that the defendant, as he is informed, and believes, has in his possession a writing, signed by the said Williamson, dated at, or about, the time the deed aforesaid for the land was made, embracing the purchase by the defendant of a horse, buggie, cow, &c.; which paper-writing, affiant is advised, and believes, contains evidence pertinent to the issue in this suit, and is material for him upon its trial; that he is informed, and believes that both the papers, referred to, are in the possession of the defendant.”

Upon the exhibition of this affidavit, the counsel for the plaintiff moved that the defendant be put under a rule to produce the two instruments of writing mentioned in the affidavit.

His Honor refused to make the order asked for, and the defendant, upon motion, was allowed to appeal.

Wilson, for the plaintiff.

Boyden, for the defendant.

Battle, J.

The 31st chapter of the Rev. Code, section 82, empowers courts of law. to compel from parties “ books, or writings, in their possession, or control, which contain evidence pertinent to the issue,” which may be on trial, “ in cases and under circumstances, where they might be compelled to produce the same by the ordinary rules of proceeding in equity.” The question, then, is, would a court of equity compel the defendant to produce the title deeds, under which lie claimed the land in controversy ; but we are not. at liberty to decide it upon the record as it now stands. As this Court said, in Wallace v. Reid, 10 Ire. Rep. 61, “ no facts are stated, upon which to enable this Court to decide whether it was erroneous to discharge the rule or not.” “ The affidavit, which is sent as a part of the case, is only evidence. The Court should have ascertained and stated the facts, so as to present the question of law.” Upon the authority of that case, we must affirm the judgment in the present.

Pee Cueiam, Judgment affirmed.