Opinion
16682
November 11, 1952.
Messrs. Price Poag of Greenville, for Appellant, cite: As to moving papers not containing facts upon which Judge's discretion could be exercised: 40 S.C. 393, 18 S.E. 929; 107 S.C. 109, 91 S.E. 973. As to Judge's granting a bill of Discovery being error where moving papers did not show a demand for inspection of the papers and refusal thereof: 40 S.C. 393, 18 S.E. 929; 107 S.C. 109, 91 S.E. 973. As to granting of Order of Discovery being error where moving papers do not show plaintiff had no knowledge of the contents of the papers or that he had not previously examined them and why another inspection was necessary: 17 Am. Jur., Discovery, Sec. 13, Page 12; 40 S.C. 393, 18 S.E. 929. As to granting of Order being error where moving papers show object of discovery was to enable plaintiff to decide which defendants to bring which cause against: 107 S.C. 109, 91 S.E. 973; 17 Am. Jur., Discovery, Sec. 11 Page 10.
Messrs. Walker White, of Union, and Sam R. Watt, of Spartanburg, for Respondent, cite: As to questions raised on appeal not being raised at original hearing: 182 S.C. 357, 189 S.E. 462. As to granting of order of Discovery not being error where moving paper showed object to be discovery of proper defendant: 115 S.C. 443, 106 S.E. 224; 175 S.C. 464, 179 S.E. 478.
Messrs. Price Poag, of Greenville, for appellant, in Reply, cite: As to burden being on moving party to show in moving papers the materiality and necessity of the discovery and the particular information required: 40 S.C. 393, 18 S.E. 929; 107 S.C. 109, 91 S.E. 973.
"Affidavit.
"Bruce W. White, being duly sworn, says: That he is one of the attorneys for the plaintiff in the above entitled action; and that, as deponent is informed and believes, on or about November 23, 1949 while engaged in the execution and consummation of an unlawful conspiracy the defendant Charles V. Pruitt and the defendant Thomas H. Young acting individually and as agent and local manager of the Greenville, S.C. office of the defendant Manufacturers and Jobbers Finance Corporation (hereinafter referred to as the defendant corporation), through and by false representations deceived and induced the plaintiff to obtain from the said Thomas H. Young as agent aforesaid and for the benefit of the defendant Charles V. Pruitt a loan in the amount of $1,150.00 all of which loan was turned over to the said Charles V. Pruitt and no part thereof was received or used by the plaintiff, and in connection with obtaining said loan the plaintiff was deceived and misled into executing a formal application therefor and a promissory note in evidence thereof; and the defendant corporation issued to the plaintiff its check representing the net proceeds of said loan and also had issued by the Blue Ridge Insurance Company of Shelby, North Carolina an insurance policy covering the automobile mortgaged to secure payment of said loan; and shortly thereafter said automobile was stolen from the plaintiff and he was never able to recover possession of it, whereupon the plaintiff contacted the defendant Plaxco, who was then acting as agent and assistant vice president of the defendant corporation, and advised him as to what had happened and returned to him the aforesaid insurance policy and signed a statement relating to the plaintiff's connection with the transaction and agreeing to re-pay said loan upon certain terms and conditions; and thereafter plaintiff was arrested under a criminal warrant, issued at the instance and request of the defendant corporation and of the defendant Plaxco and charging plaintiff with obtaining money under false pretenses, and he was placed in jail and kept there for some ten hours in the City of Roanoke, Virginia; and by and through the duress and intimidation flowing from said arrest and incarceration the defendant corporation extorted from the plaintiff not only the amount of money lent as aforesaid but also an amount in excess of said loan, which plaintiff was forced to pay in order to extricate himself from the entanglement and thereby save the loss of his job; and thereafter the defendant corporation tendered to the plaintiff a check of Blue Ridge Insurance Company for approximately $120.00 in settlement of "all causes of action connected with or growing out of the execution of' said note, which said check was declined by the plaintiff and returned to the defendant corporation on or about May 2, 1950.
"That as deponent is further informed and believes the plaintiff has a good and valid cause of action or causes of action against the defendants arising out of the circumstances hereinabove briefly outlined; that production and discovery of the aforesaid loan application, note, loan check, insurance policy, written statement by the plaintiff, and check of Blue Ridge Insurance Company are necessary to enable the plaintiff intelligently to frame his complaint herein; that said papers and documents are within neither the possession nor control of the plaintiff but on the contrary are within the possession or control of the defendant corporation; and it is respectfully submitted that said papers and documents should be ordered produced and made available to the plaintiff so that he may have photo-copies thereof made for his uses and purposes aforesaid."
"Affidavit.
"W.L. Plaxco, being duly sworn, says: that he is the Assistant Vice President of the defendant Manufacturers and Jobbers Finance Corporation and that he is one of the individual defendants above named; that he has read the Notice and Motion of Plaintiff for an order of discovery and that certain papers listed in such Notice are not in the possession or control of the defendant corporation, those papers being as follows as shown by the number appearing beside them in said Notice:
"1. Application to said corporation for a loan signed by the plaintiff on or about November 23, 1949; that deponent has search the file, No. 6867, of the loan to the said Donald W. Reno and has been unable to find such application signed by plaintiff.
"2. Note to said corporation signed by the plaintiff on or about November 23, 1949; that deponent personally gave said note to the father of plaintiff on February 8, 1950 and therefore said note is not in the possession or control of said corporation but is in the control or possession of plaintiff or his father.
"6. Check of Blue Ridge Insurance Company forwarded to the plaintiff with letter of February 15, 1950; that the plaintiff returned said check to the Greenville office of said defendant corporation and upon its return the check was returned to the Blue Ridge Insurance Company at Shelby, N.C. and therefore said check is not in the possession or control of said defendant corporation but is in the possession and control of the Blue Ridge Insurance Company.
"That deponent further says that he has read the affidavit of counsel for the plaintiff in support of the referred to Notice and Motion and that the statements made therein upon information and belief, which information deponent believes to have come from the plaintiff, are not compatible with or in conformance with the below documents and papers demanded by plaintiff and that such papers constitute a defense to the allegations of said plaintiff and should not be surrendered or examined by him for purpose of evading such defense or defenses:
"3. Check of defendant corporation to the plaintiff issued on or about November 23, 1950.
"5. Statement signed by plaintiff.
"Deponent further states that the statement referred to in said Notice and designated as No. 5, was signed by plaintiff on December 6, 1949 which is almost two weeks after date given by plaintiff in his Notice."
November 11, 1952.
In writing this opinion we will refer to the respondent as plaintiff, and to appellant as defendant.
The plaintiff served a summons (complaint not served) upon the defendant, and simultaneously, and attached thereto, there was served on defendant a notice of motion for order of discovery and affidavit of Bruce W. White, Esq., one of plaintiff's attorneys, in support of the motion. The motion was returnable before Honorable Bruce Littlejohn, resident Judge of the Seventh Judicial Circuit, on the fourteenth day after the service of the summons, but, by agreement of counsel, was continued to a later date. None of the named defendants, other than the appellant, was served with a summons and had not been served at the time this appeal was taken.
Within six days after the service of the summons on the defendant, the attorneys for defendant gave notice of appearance not only for defendant, but for W.L. Plaxco, named in the title of the case as a defendant, and demanded a copy of the complaint, but the time for serving the complaint was subsequently extended by agreement.
At the hearing on the motion for order of discovery before the Circuit Judge, there was presented by defendant an affidavit of said W.L. Plaxco who was one of defendant's officers, but so far as the record discloses, no other return was made. Judge Littlejohn granted the motion as to the papers in the possession or control of the defendant, and conditionally as to the other papers and documents.
It does not appear that any of the questions now sought to be raised by this appeal were presented to and passed upon by the Court below. Apparently defendant resisted the motion for order of discovery upon the grounds that certain of the documents were not in its possession or control; and that the statements made in the supporting affidavit of plaintiff's counsel upon information and belief, such information presumably having been furnished to him by plaintiff, were not compatible with or in conformance with the other papers and documents sought by plaintiff, and that such other papers constituted a defense to the allegations of plaintiff, and should not be surrendered to him or examined by him for the purpose of evading such defense or defenses.
The plaintiff in his printed brief calls to our attention "that it does not appear from the Record that the several questions as raised by this appeal were presented to and passed upon by the Court below * * *; and therefore such questions are not properly before this Court." We find nothing in the record to the contrary, and although defendant filed a reply brief, there is no refutation of this statement.
We do not set out the papers and documents demanded in the notice of motion for order of discovery for the reason that all of these papers and documents are referred to in the affidavit of Mr. Plaxco with the exception of No. 4, "Insurance policy issued by Blue Ridge Insurance Company in connection with said loan." It appears that this document became unimportant since no further reference is made thereto by either party to the case.
Let the two affidavits hereinabove referred to be reported herewith.
In that it does not appear from the record that any of the issues raised by this appeal were presented to and passed upon by the Court below, we will not consider such issues and the appeal is dismissed.
Appeal dismissed.
FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.