Lovell v. Clarke

The application, although in the form of a petition, and conforming substantially to the rules, in fact seeks the discovery given by the Code. But I see no objection to the practice of so framing the application as to embrace both, which seems to have been done in the present case.

As to the assignment, there can be no doubt of the defendant’s right to an inspection and copy. The suggestion made by plaint*159iff’s counsel that he may rely on an assigment by mere delivery, is of but little force, in the absence'of any affidavit; and especially when the penalty for not producing it is that the court “ may exclude the papers from being given in evidence.”

But it is contended that the plaintiff can not be required to discover the order, “ because it is a record of the court and open to all.” There would be more force in this argument, if all the orders were entered in one clerk’s office; but as the orders are scattered over the whole state, I think it quite as reasonable to require the plaintiff to exhibit his copy, as to send the defendant’s attorney to the various clerks’ offices in search of it.

The plaintiff must, therefore, within three days after service of a copy of the order, give to the defendant an inspection and copy, or permission to take a copy of the order and assignment.