Durant v. Goss , 12 F.2d 682 ( 1926 )

DONAHUE, Circuit Judge

(after stating the facts as above). Section 724 of the Revised Statutes (Comp. St. § 1469) provides that, “in the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, winch contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery.” The purpose of this provision is to provide a substitute for discovery in aid of a legal action. Carpenter v. Winn, 221 U. S. 533,. 537, 31 S. Ct. 683, 55 L. Ed. 842.

Section 724, R. S., has so enlarged the powers of courts of law to order and require the production of .books or writings in the possession or control of either plaintiff or defendant as to make the equitable remedy practically unnecessary, hut it does not affect the jurisdiction of a court of equity to entertain a bill of discovery in aid of an action at law, where the bill presents a case calling for the exercise of such power. Carpenter v. Winn, supra; General Film Co. v. Sampliner (C. C. A. 6) 232 F. 95, 146 C. C. A. 287. If the legal remedies are sufficient, the jurisdiction will not be exercised. Like any other equitable remedy, it is exceptional, and the plaintiff must bring- himself within the exception. U. S. v. Bitter Root Development Co., 200 U. S. 451, 472, 478, 479, 26 S. Ct. 318, 50 L. Ed. 550; Scotten et al. v. Rosenblum et al. (D. C.) 231 F. 357, 360; Rindskopf v. Platto (C. C.) 29 F. 130.

The plaintiff’s suit at law, in aid of which he claims this bill of discovery has been filed, is an action to recover the value of shares of stock in a corporation which plaintiff avers were loaned by him to the defendant and wrongfully converted by the defendant to his own use. Plaintiff has equal knowledge with defendant whether these shares of stock were or were not loaned by him to the defendant, nor does plaintiff require any disclosure from the defendant to prepare his pleadings. What he is actually seeking to do by this bill of discovery is, not to secure evidence solely within the control of the defendant necessary to maintain his action against defendant, but to compel the defendant to disclose the evidence upon which he bases his defense to this action, and upon which he predicates his right to recover from the plaintiff upon the several items pleaded in his notice. “A hill of discovery cannot be used merely for the purpose of enabling the plaintiff in such a bill to pry into the case of his adversary to learn its strength or weakness.” Carpenter v. Winn, supra, at page 540 (31 S. Ct 685).

The plaintiff has filed in the law action, in aid of which this bill of discovery is filed, a petition and motion for an order requiring defendant to produce books and writings in his possession. Under the provisions of section 724, R. S., the court in which the law action is pending has authority to grant him all the relief in this respect to which he is entitled. His bill of complaint in this ease, read in connection with his petition in the law action, presents no such state of facts as would require the intervention of a court of equity by the exercise of its power to compel disclosures.

For the reasons stated, the decree of the District Court is affirmed.