Potter v. Beal et al., 50 F. 860

Putnam, Circuit Judge. The order of the circuit court provides that, without proof, and without hearing .the parties, except the explanation authorized by it, the master shall make a secret, private examination oi the contents of the trunk in question in this case; not for informing the court or counsel, but for distribution. He is directed to divide the contents into three parts, delivering one to complainant, one to the original defendant, Beal, and returning the third into court for the purpose of further consideration.

This so clearly violates the constitutional and fundamental rights of litigants as to the method of trial, that it is to be presumed the learned judge who entered the order had reason to understand it would be accepted by all interested as a matter of convenience; though to provide for all contingencies, he, both in his opinion and by a special order, reserved the rights of all parties till they could be passed on by this court. The first question which meets us is whether this appeal shall be regarded as from an injunction granted by an interlocutory order under the seventh

section of theact establishing this court, or whether it is to bo taken hold of as from a final decree. The record states that the order was preliminary; but, of course, this is not effectual, as it is for this court, and not for the circuit court, to determine that question in all cases, and the determination is to be governed by the essence of what is done, and not by the appellation given to it.

If this is to be regarded as, an appeal under the seventh section, there might yet be some matters concerning which this court could take jurisdiction, ás, for instance, the fact that the injunction order holds the papers after they pass from the custody of the court; but it may be doubted whether we can be given jurisdiction by an injunction entered under color for that purpose, or by one purely nominal, concurrent with proceedings before a master, or the appointment of a receiver, or the impounding ol papers or moneys pending litigation, if as effectual without the injunction as with it.

The power of the circuit court to control proceedings before a master, or to make effective a receivership, or in itxvpounding papers or moneys, is in the main ample, both theoretically and practically, without any injunction: and if, in such ease, we should dissolve a superfluous injunction, we may be permitted to touch only the surface, and required to leave unaffected the substance of the order appealed from.

As, however, the order in this suit places a part, and perhaps the whole, of the contents of this trunk absolutely beyond the control of the court, it seems to dispose of a part or the whole of the matter in controversy so effectually that we are forced to accept as a final decree so much as directs a distribution, notwithstanding the difficulty of determining, as between cases apparently analogous, on which side of the line this at bar properly falls, in accordance with the practice and principles of the supreme court. It seems to us the case is more akin to Forgay v. Conrad, 6 How. 201, Thomson v.

Dean, 7 Wall. 342, Railroad Co. v. Bradleys, Id. 575, Hill v. Railroad Co., 140 U. S. 52, 11 Sup. Ct. Rep. 690, and Grant v. Raid road Co., 50 Fed. Rep. 795, than to Pulliam v. Christian, 6 How. 209, or U. S. v. Girault, 11 How. 22. In Barnard v. Gibson, 1 How. 650, Forgay v. Conrad, supra, was referred to, and distinguished from the ordinary cases with reference to the right of appeal from a decree for an injunction in patent causes before the master’s accounts are taken. It was also cited’with apparent approval in Hill v. Railroad Co., supra.

Inasmuch as in the case at bar the papers which may bo delivered the complainant, or the original defendant, under the order appealed from, may go effectually beyond the control of the other party claiming them, or even be destroyed, before an appeal can be taken to this court from any decree which entirely disposes oi the suit, the necessity of our taking jurisdiction is as apparent as it was in any of the cases cited, or in Farmers' Loan & Trust Co., Petitioner, 129 U. S. 206, 9 Sup. Ct. Rep. 265.

Therefore we conclude to hold the appeal as one from a final decree, with reference to so much of the order as directs distribution' to the complainant and the defendant Beal of any part of the contents of the trunk.

We have no doubt that when this court properly takes jurisdiction on appeal from a final decree it has power to go beyond a mere reversal, and to enter such decree as should have been entered by the court below on the whole case as appearing in the record; nor have we any doubt that it is likewise its duty to review all the interlocutory proceedings of every character, using the term in the largest sense, with reference to which objections have been seasonably made and insisted on.

Therefore we consider first the order of the court below making the attorney of the United States for thé district of Massachusetts a party defendant. In accordance with the broad principles of Florida v. Georgia, 17 How. 478, we presume the United States would generally be allowed to intervene summarily; or by a supplemental information or bill, for protecting property rights involved in a pending suit in equity; but in this case the petition of the district attorney, asking to be made a party, does not state the grounds on which he bases it.

It is gathered from the record at various points that his purpose is to reach for use in criminal proceedings certain papers said to be in the trunk in controversy. For such purpose we think the proper course was for him to obtain at the ofitset a subpcena duces tecum, from the court where the criminal proceedings were pending, to be framed in accordance with the rules of criminal procedure, and thereafterwards to make

summary application to the court which had impounded the papers covered by the subpcena. We are unable to see that, for any purpose connected with criminal proceedings, it was necessary or proper that the attorney of the United States be made a party to the pending bill, or that the law authorizes him to thus prejudice either the original parties to the suit or the United States.

These suggestions, however, we will leave for further consideration in the event the necessity therefor arises, holding for the present that, in the absence of a subpoena or other alleged specific right, the attorney of the United States has no standing in this suit.

So far as shown by the record the title of the complainant to the trunk and its contents is clear, and no facts were proven which suggest the contrary, or which are sufficient to authorize the court to defeat at the outset his presumed purpose in bringing this bill, namely, to obtain the trunk and its contents free from public or private inspection, as is his right if the same are his property. We are unable, however, to enter on this account a decree for the complainant, by reason of the exclusion'by the court below of the testimony of Edward W. Hutchins as to the nature of the papers which he had inspected.

Whether or not this evidence, if admitted, would have overcome in any particular the facts now shown by the record, we, of course, have no method of determining. Nor can we determine whether the evidence should have been admitted; nor have we the jurisdiction to direct in detail what course the circuit court should pursue for the purpose of ascertaining whether or not it is admissible.

It is enough for us to say that, as evidence was offered which, if admitted, might possibly have shown that the complainant was not entitled to the entire contents of the trunk, and was rejected in such way that the record does not disclose the nature of the proposed proof, we are unable to enter a decree dismissing the bill; and to say also that the question of the admission of this evidence is to be determined primarily by the circuit court as all like matters are disposed of.

It is for the judge of the circuit court to ascertain by private examination of the witnesses, or in such other way as the rules of law permit, whether or not the evidence is prinia facie admissible; and if he is satisfied that it is, we know of no rule of law which debars the defendant of his right to prove facts relevant to the case by Mr. Hutchins, if the complainant has, either purposely or unguardedly, permitted Mr. Hutchins to so far inspect the contents of Ihe trunk as to know what it contains in any part.

In short, we know of no rule o.f law which, so far as concerns the admission of the testimony offered, differs from that applicable to causes in general; with reference to all which the court will always see to it that private transactions are not unnecessarily exposed to the public gaze, though it will not shrink from permitting them to go into the record when the necessities of justice require it.

We do not hold that it is not, in proper cases, within the power of the chancellor to substitute in lieu of himself a suitable master or referee- for the purpose of ascertaining prima facie whether or not testimony offered is entitled to be heard; but we do hold that, on the state of this record, without some proof beyond what is here disclosed, the court should not inspect, nor permit an inspection of, the contents of the trunk, either private or public, and thus perhaps defeat the very purpose of the bill.

We draw a broad distinction between the right of the circuit court to pass on the admissibility of the testimony of Mr. Hutchins, offered and ruled out, and to determine this preliminary question privately, and its right, on the other hand, to order an inspection of the contents of the trunk, either private or public; and we limit this distinction to the case as shown, without undertaking to deny that there are possibilities that, under some circumstances, an inspection may become necessary for the ends of justice.

An inspection, however, if ever ordered, should be only in eases of real necessity, when the other proofs make it clear that private rights cannot be determined without it; nor should it be made without positive evidence that there are papers of doubtful ownership, nor without some evidence of their identity and character. No inspection should be permitted, in suits of this character, merely because the defendant is unable to prove his case without it, nor because of mere doubts, suspicions, or suggestions, nor, as we repeat, except there is a clear emergency demanding it.

It is true that in a limited sense the party who seeks the aid of equity to obtain possession of private papers submits himself to the court; and yol it is to be remembered that the main object of going into equity may be, not to obtain the papers themselves, but to secure the privacy to which the owner of them is entitled, and which bo may not be able to protect except with the aid of the chancellor; and it is not permissible that the chancellor should defeat at the outset — unless under extreme circumstances — any portion of the relief which the complainant seeks, and which, perhaps, may be more effectually denied by permitting the privacy of his papers to be violated than by any refusal to give possession of them.

The rules laid down by us are in harmony with those applied to proceedings for production of private papers in suits in equity, or in proceedings at law under Rev. St. § 724; for either of which it is necessary to show, not only that specific papers exist and are in the possession of the party against whom the order is asked, but also that they are pertinent to the issue. The record in this case fails in all these particulars.

The secrets of the party against whom an order of production may run are so well preserved by the law that he seems to be at liberty to seal up such portions as he is willing to make affidavit are privileged or irrelevant. The form of such affidavits appears in Seton, Decrees, (4th Ed.) 136, (10.) When the affidavit contains statements at variance with each other, or the documents, so far as made known, show a discrepancy, the practice seems to be that the court may get at the truth by compelling a discovery, and, if necessary for that purpose, may unseal the documents and examine them.

It is said, however, that this exception to the general rule does not apply when the affidavit is merely suspected, or “ even if open to every possible suspicion.” Bowes v. Fernie, 3 Mylne & C. 632. Coming closer to the case at bar, it is said that interlocutory production and inspection will not be ordered on the motion of a plaintiff in equity, if in this way he would practically obtain the object of his bill. This !was so ruled by Sir John Leach in Lingen v. Simpson. 6 Madd, 290. This case is explained in Chichester v. Marquis of Donegal, 4 Ch.

App. 416-419, where it was said that the production would have enabled the Iplaintiff to have gotten a great portion of the custom of the defendant, and thus to have accomplished on an interlocutory order the main purpose of the suit.

In the case at bar the bill alleges that the contents of >the trunk are “ private property,” and “personal in their nature;” and the (prayer is that the defendant may be enjoined from permitting the papers -to be inspected, and that also, pending the prosecution of the suit, he ,may be enjoined “from showing them, or any of them, or allowing them, ’or any of them, to be inspected.” Therefore to permit an inspection, as ordered by the circuit court, would perhaps defeat the purpose of the 'bill as effectually as the production asked and refused in Lingen v. Simpson, supra.

These principles and cases relating to the ordinary practice concerning production of private papers are not brought in here as strictly applicable, but they illustrate the tenderness with which courts guard against unnecessary exposure. The order admitting the attorney of the United States a party defendant is reversed, and his petition to be so admitted is dismissed, without costs, and without prejudice to any rights of him’ or the United States in any other proceeding.

The order entered February 25, 1892, appointing a master, is reversed, and the case is remanded for further proceedings in accordance with this opinion, so far as it appertains. The complainant recovers the costs of this appeal against the original defendant, Beal.