
    DAVID SHELP, Appellant, v. HATTIE R. MORRISON, Respondent.
    
      Refusal, of pa/rty to action, to produce paper ■— contempt — striking out complaint.
    
    Upon the trial of this action, brought to foreclose a bond and mortgage, in which the defense was payment, the plaintiff having been subpoenaed-to produce the bond was called as a witness and asked if he had it, to which he said he did not have it; that he did not have it in his possession when subpoenaed. The court then staled that the question was, whether he had control of it. After about an hour had been occupied by counsel in his efforts to find out where the bond was, the counsel for the plaintiff stated that he had it in his pocket, and being asked by the court if he would produce it said that he declined to do so at present, whereupon the justice ordered the complaint to be stricken out. Held, that this was proper.
    Appeal from a judgment in favor of tbe defendant, entered upon an order made at tbe Circuit striking out tbe plaintiff’s complaint.
    
      J. E. Dewey, for tbe appellant.
    
      M. L, Stover, for tbe respondent.
   Osborn, J.:

Tbis appeal is from a judgment entered against plaintiff and in favor of defendant for fifty-nine dollars and fifty-seven cents, tbe complaint having been stricken out by tbe court. Tbe action was for tbe foreclosure of a mortgage executed by tbe defendant in 1870, to one Edwin Groat, for tbe sum of $585 and interest, upon certain lands and premises in Montgomery county. Accompanying tbe mortgage is a bond in tbe usual form. Tbis bond and mortgage was duly assigned by Groat to one John E. Morris, and afterwards by Morris to one Myndert "Wemple, and by "Wemple, in January, 1877, to plaintiff, wbo, in about a week thereafter, commenced tbis action, and in tbe complaint claims that there is due and unpaid thereon fifty-eight dollars and sixty-eight cents, with interest from June, 1876. Tbe answer simply alleges payment in full, and upon tbis issue tbe cause came on to be tried in October last at tbe Montgomery County Circuit. On tbe trial, Justice Potter bolding such Circuit dismissed the complaint, and tbe only question presented for review on tbis appeal is, whether be was authorized in so doing.

Tbe defendant bad subpoenaed tbe plaintiff to produce tbe bond in suit, and after tbe plaintiff bad rested, and tbe defendant was endeavoring to establish tbe defense of payment, tbe plaintiff was called as a witness and testified that be bad been subpoenaed to' produce tbe bond, but that be did not have it; that be supposed be was tbe owner of tbe bond and mortgage; be further stated that be did not have tbe bond in bis possession when be was subpoenaed, and did not know as be bad ever bad it in his possession exactly. At tbis point the court stated that tbe question was, whether witness bad it or ought to have it, or has got control of it.” Tbe counsel for tbe defendant then stated to tbe court that it was proved that the witness was tbe owner of tbe bond and mortgage, and asked if tbe court denied a motion to strike out tbe complaint, and tbe reply was “ yes, on the present state of facts.” He further said to tbe counsel, “ find out where tbe bond is.” Just at tbis point, Mr. Dewey, counsel for tbe plaintiff, remarked that be bad tbe bond in bis pocket, and upon-being asked by tbe court if be produced it, be replied that he declined to do so at present, -and was proceeding to make some further state-meat wben tbe learned justice ordered the complaint stricken, out, to which an exception was taken. The question now is, was this court legally empowered or authorized to do this ?

It would seem from the record as though this whole discussion in reference to the production of this bond occupied but a moment, and yet it is apparent from a remark made by the judge that an hour or thereabouts was consumed in the effort to find out from the plaintiff where the bond was, and if possible to procure its production. All this time it was in the custody of the plaintiff’s counsel, there in court, and that fact was undoubtedly known to the plaintiff. It was the plaintiff’s instrument; he owned it; he had been subpoenaed to produce it. It had, without question, been the subject of conversation between plaintiff and his counsel. In one sense it was in plaintiff’s possession and under his control, while he was evasively answering the questions put to him with a view to its discovery. Such conduct is clearly contumacious, and such a practice is not to be tolerated. It was an unnecessary waste of time, an evident trifling with the court and not at all in keeping with the due and orderly administration of justice.

When the discovery was made, I think the counsel should at once, upon the request or suggestion of the court, have produced it. This he declined to do at that time, and for this refusal, taken in connection with all that had transpired previously, I think the court was justified in striking out the complaint. (Code, § 858 ; Brett v. Bucknam, 32 Barb., 655; Bonesteel v. Lynde, 8 How., 226; Gaughe v. Laroche, 14 id., 451; Valiente v. Dyckman, 24 id., 222; Boynton v. Boynton, 25 id., 490.)

It can easily be seen how this paper might be of the greatest importance to the defendant; non constat, its production would establish the alleged payments by the indorsements appearing thereon. I see no force in the offer which was made to show that the bond and mortgage had passed into the hands of a receiver. The bond was in court aud this proof, if made, would furnish no excuse for its non-production, nor is there any force in the point raised by the appellant that the contents of the subpoena do not appear, or the time when service of the same was made. No such objection or suggestion was made at the trial, and it cannot now be urged here. Indeed, as this was a material paper and in the possession of tbe plaintiff or bis counsel on tbe trial, tbe court, on request of tbe defendant, could order its production, and if refused could properly strike out tbe complaint as was done in this case, although no subpoena or notice bad been served. (See cases above cited.)

It was quite evident that for some reason or other tbe plaintiff and bis counsel did not propose to present this bond, for, after the court bad ordered tbe complaint stricken out, no offer was made to produce tbe same. If this bad been done tbe court might have, and quite likely would have, reconsidered its action. Tbe offer was to'prove something by way of excuse for not producing it, and which, if proved, as we have seen, would not have amounted to any legal excuse.

For tbe reasons stated, tbe judgment appealed from must be affirmed, with costs.

Learned, P. J., and BooKes, J., concurred.

Judgment affirmed, with costs.  