Neafie & Levy v. Miller & Henderson

Citations

• 37 Fla. 173

Syllabus

<p>Discovery oe books and documents—when permitted to enable PARTIES TO PREPARE PLEADINGS UNDER RULE 58 CIRCUIT' COURT RULES.</p> <p>1. Rule 58jfor the government of the Circuit Courts in common law-actions, making provision to compel the discovery and production of books, papers and documents in the possession or under the control of a party, that may be necessary to enable the other party to frame his reply or answer to any pleading of his adversary, was adopted here from the rules of practice of the Supreme Court of the State of New York. When invoked, the application for discovery under it must specially state what information is wanted, and that the books or papers referred to contain such entries; and this must be stated upon positive affirmation, and not on mere information and belief. The rule was never designed to allow parties to fish for evidence in the private books of account, or documents of others. A discovery under this rule may be ordered to assist the defendant to facts, without which he can not frame a pleading that-will protect his rights in the action itself; but the object for which discovery will be ordered under it is not to prevent a defendant from pleading untruthfully, or to inform him how fully he may have furnished the plaintiff with the means of disproving the pleading that he proposes to interpose. Applications under the rule should not be granted when it is manifest upon the face of the application itself that the defendant has no defense that he can not set up in due legal form to raise the proper issues, without the aid of the papers sought for. In applications of this kind the applicant must show how or why it is necessary to have the discovery in order to prepare or formulate his pleading. The bare fact that a defendant’s own books have been destroyed that contained his entries of his side of transactions with the plaintiff will not authorize the invocation of the rule.</p> <p>2. 'Whenever a proper case is presented for the enforc