Rainey v. Rainey , 144 Ky. 502 ( 1911 )

Opinion op the Court by

Chief Justice Hobson

Overruling motion for a subpoena duces tecum.

Appellant has entered a motion that the court order a subpoena duces tecum issued directing the clerk of the Mercer Circuit Court to transmit to the clerk of this court the pleadings, depositions ¡and exhibits in this action and another case consolidated with it, for the purpose of their being used as a part of the record on this appeal, and thereafter returned to the Mercer Circuit Court, the motion being based on the ground that the record is large, that the copying of it will cause great cost ¡and delay, and that appellant has no property with which to defray the cost.

The purpose of having transcripts made on appeal to this court is that the original record shall remain in the circuit clerk’s office, and shall not be subjected to the risks of loss in being brought to this court and returned after the decision of the appeal. Section 743 of the Code provides:

“The Court of Appeals, if satisfied that a view of any part of a record may be important to a correct decision of an appeal; or that the copying of any part of a record would cause great arid unnecessary delay, may, by á writ of subpoena duces tecum directed to tbe clerk of tbe inferior court, cause him to transmit sucb part of the record to tbe clerk of tbe Court of Appeals. It shall be identified by tbe clerk of tbe inferior court, by his certificate endorsed thereon or appended thereto; and, after tbe cause shall have been decided by tbe Court of Appeals, shall be returned by its clerk to tbe clerk of tbe inferior court. Tbe cost of sucb transmission and return shall be paid by the party at whose instance tbe transmission is made, and be taxed as part of tbe costs.”

Unless a view of tbe papers is important to a correct decision of tbe appeal, tbe court will not, except in extreme cases, order tbe original papers brought here. It will not in sucb cases order pleadings or small papers brought here, but only bulky parts of tbe record sucb as a book or tbe like, tbe copying of which will cause great and unnecessary cost or delay. Tbe showing here does not warrant tbe writ.

Motion overruled.