#### STATE ex rel. MENDENHALL, Relator *v.*DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.

(No. 2,012.)

(Submitted January 11, 1904.

Decided January 18, 1904.)

*Discovery■*— Inspection *of Boohs and Papers*— Order—Affida*vits*— Sufficiency—Constitution.

1. The constitutional guaranty contained in Article III, Section 7, that the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures, cannot be disregarded under Section 1810, Code of Civil Procedure, unless such necessity for inspection exists as is contemplated by said section.

2. under Code of Civil Procedure, Section 1810, the court, before making an order of inspection, must determine from the moving papers that an action is pending, and that the writings subject to be inspected contain competent evidence, material to the issues, or necessary to enable the moving *364party to prepare for trial; and hence tlie moving papers must affirmatively show that such action is in fact pending.

3. under Code of Civil Procedure, Section 1810, the court must determine from the facts set forth in the moving papers whether any necessity exists for the order; and affidavits which do not set forth any facts, but merely affiant’s conclusion that such inspection is necessary, are insufficient.

ApplicatioN for a writ of review, to annul an order, by tbe state, on tbe relation of E'. B. Mendenhall, against tbe district court of tbe Second judicial district; Hon. EL W. Harney, judge.

Order annulled.

*Mr. James*Donovan, and *Mr. F. W.*Mettler, for Delator.

*Messrs. McBride &*McBride, for Kespondents.

MR JUSTICE HOLLOWAY

delivered tbe opinion of tbe court.

On July 25, 1903, an action was commenced in tbe district court of Silver Bow county, Montana, by one E. B. Mendenhall, plaintiff, against T. M. Hodgens and T. D’enoon, copartners doing business under tbe name of tbe Copper State Fruit Company. To tbe original complaint filed, tbe defendant Hodgens interposed a demurrer, which was by tbe plaintiff confessed, and thereafter, on November 2, 1903, an amended complaint was filed. Tbe purpose of tbe action is to recover damages alleged to have been sustained by tbe plaintiff, Mendenhall, by reason of tbe alleged breach of a contract on tbe part of tbe defendants. Tbe complaint sets forth in detail tbe terms and conditions of tbe contract, and tbe particulars in which tbe plaintiff was damaged by tbe alleged breach.

On November 3, 1903, and without further appearing in the matter, tbe defendant Hodgens filed in tbe district court an application for an order requiring tbe plaintiff to permit tbe defendant Hodgens to examine and take copies of certain documents and writings designated in tbe application as documents and writings used in evidence upon tbe trial of tbe case of tbe state of Washington against EL B. Mendenhall, and designated therein as Defendant's Eixhibits 3, 4 and 5, and Plaintiff's'Ex-*365bibits 1 and 2. In support of tbis motion, defendant Hodgens filed bis own affidavit and tbe affidavit of Bobert McBride, one of bis attorneys. These affidavits set forth tbe efforts of tbe defendant Hodgens to secure from tbe attorneys of tbe plaintiff, in whose possession tbe writings are alleged to be, an inspection and copies of tbe same, and bis failure in that behalf. Tbe affidavit of tbe defendant Hodgens then continues: “That affiant understood from tbe said Donovan that said letters were letters affecting tbe merits of tbe claim which tbe said'Donovan made on behalf of tbe said Mendenhall, and were letters upon which be relied to establish the validity of tbe said Menden-hall’s claim, and that tbe said letters were letters used by tbe said Mendenhall in tbe trial of tbe case of tbe state of Washington against Mendenhall, mentioned in plaintiff’s complaint on file herein; that prior to tbe commencement of tbis action tbe said Donovan wrote to affiant relative to- tbe Mendenhall claim, and referred in said letter to an alleged contract which tbis affiant bad with tbe said' Mendenhall, a copy of which said letter is hereto' annexed, marked ‘Eixbibit A,’ and made a part of tbis affidavit; and affiant believes, and so. alleges, that tbe letters which tbe said Donovan has in bis possession are material in tbis action for tbe purpose of establishing the defense to tbe pretended and alleged claim made by said Mendenhall against affiant.” Tbe affidavit of McBride contains these averments: “And affiant believes, and so alleges, that tbe said letters are material in tbe action, and an inspection of tbe same is necessary to a proper defense of tbe said action, and that tbe said plaintiff will rely upon tbe said letters, if tbe above action shall ever be tried, as a basis of bis claim against tbe said Hodgens; that tbe letters referred to as being in tbe possession of tbe said Donovan are letters which were used in tbe trial of tbe case of tbe state of Washington against El B. Mendenhall, mentioned in plaintiff’s complaint as being an action upon which tbe said Mendenhall relies for tbe purpose of establishing a claim for damages against tbe said Hodgens. * * * And affiant believes, and so alleges, that tbe said identical letters are now *366in tbe possession of tbe said D'onovan, and are material in tbe above-entitled action, as a part of tbe defense to tbe same.”

Tbe plaintiff filed written objections to tbe application for tbe order of inspection, for tbe following reasons:

> “(1) Because tbe affidávits in support of said application are insufficient, in tbat they do' not contain any statement that an action is pending- in tbe court in favor of tbe plaintiff and against tbe defendant, and for tbe further reason tbat said affidavits do not apprise the court of tbe nature of tbe action and tbe relief sought, in order tbat it may determine wbetbe'r tbe evidence sought to be obtained by tbe inspection could, in any view of tbe case, be material or relevant to tbe issues.

> “(2) Because tbe affidavits in support of said application fail to state any facts or circumstances showing tbat tbe letters or documents sought to be inspected by tbe defendant concern tbe defense of tbe defendant, but, on tbe contrary, said affidavits affirmatively show tbat such letters or documents, if pertinent at all,, have reference solely to tbe plaintiff’s case.

> “(3) Because it is not shown tbat said letters or documents, or any of them, sought to be inspected, are material to any' issue which has been or may be raised by any pleading in any case, or tbat the same, or any of them, are necessary to enable tbe defendant to make a defense, or to' aid him in framing bis answer or other pleading.

> “(4) Because no particular description of tbe letters or documents or their contents are set out in tbe application, or tbe .affidavits in support thereof.

> “(5) Because it is not shown in tbe said application what particular information or evidence defendant desires to obtain, nor is it shown tbat any of said letters or documents contain any such information, if produced.

> “(6) Because it is not shown tbat the documents are or would be admissible in evidence on behalf of tbe defendant upon tbe trial of any issue in any cause, and it is not shown tbat tbe same would be admissible as evidence under any circumstances.

> *367“(7) Because there are no facts or circumstances stated showing the necessity for the production of said documents at this time.

> “(8) Because it is not shown that the defendant has made or intends to make any defense to said action, for the reason that it does not appear that any answer has ever been filed in the case., or ever will be filed by the defendant herein; and for the further reason that it does not appear that the defendant has a good and meritorious defense, or any defense, to- said action.”

• Thereafter, on November 21, 1903, the application was heard by the court; and, in addition to the moving papers, the defendant Hodgens introduced in evidence the complaint and amended complaint in the action of *Mendenhall*v. *Hodgens,*and rested. The court thereupon made an order overruling the plaintiff’s objections, sustaining the application of defendant Hodgens, and directing that plaintiff permit an examination and inspection of the writings, and the making of copies thereof, on or before November 28, 1903, at 12 o’clock m. Plaintiff thereupon made application to this court for a writ of review to annul such order of inspection.

The same question presented here came before this court in *State ex rel. Boston & Montana C. C. & S. M. Co.*v. *District Court,*27 Mont. 441, 71 Pac. 602, 94 Am. St. Rep. 831; and it was there held that the moving papers in the application for the order — in this instance, the motion and affidavits — must show affirmatively that an action is then pending in the district court. It was also-said: “We are further of the opinion that the application should, by express statement, or by apt reference to the pleadings on file, apprise the court of the nature of the action and the relief sought, in order that it may determine whether or not the evidence sought to be obtained by the inspection could, in any view of the case, be material or relevant to the issues. For its failure to show these facts, we consider the application insufficient to- vest in the lower court authority to make any order of inspection.” The reason for the rule there *368announced is made even more apparent in this instance. The constitutional guaranty contained in Article III, Section 7, of the Constitution, that the people shall be secure in their persons, papers, homes and effects from unreasonable search and seizure, cannot be disregarded, to- satisfy the idle curiosity of litigants.

Section 1810 of the Code of Civil Procedure, under which this application is made to the court below, provides: “Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any documenc or paper in his possession or,under his control, containing evidence relating to the merits of the action, or the defense therein.” The provisions of this section are obviously intended to enable a party to an action *then pending*to obtain an inspection of writings in the possession or under the control of his adversary, provided the party applying for the inspection in good faith believes he has a meritorious cause of action or defense, and provided further that those writings, contain evidence relating to the merits of the action, or to the defense therein; and the district court, before making an order of inspection, must determine from the' showing made that an action is pending ; that the writings sought to be inspected do in fact contain evidence competent to be introduced upon the trial, and material and relevant to the issues in controversy, or necessary to enable the moving party to frame his pleading or prepare his cause for trial. In this instance it was impossible for the lower court to have reached any conclusion with reference to these matters. There is no allegation that an action is pending, and, taking the view most favorable to defendant Hudgens, and in conformity with the contention of the respondent here — that the original and amended complaints were before the court as evidence of the pendency of an action — it must be apparent at a glance that such a showing is wholly insufficient. The mere fact that a complaint -is on file in court is hardly sufficient proof *369of the pendency of an action. The complaint might be on file, and the action have been dismissed, or a final judgment have been entered, and affirmed on appeal. However, we reassert the doctrine announced in *State ex rel. Boston & Montana*C. *C. & S. Mining Co.*v. *District Court, supra,*that it must appear affirmatively from the moving papers that such action is in fact pending. The defendant Hodgens had made no appearance in the ease, except to- file a demurrer, which had been confessed, and, in his application and affidavits in support thereof, he wholly fails to- state that he intends to plead further, that he has any defense to the plaintiff’s cause of action, or, if he has, the nature thereof, or that he will interpose it. The court could not be apprised of the issues which would he involved; neither could it determine whether, in fact, the inspection was necessary in order to enable defendant Hodgens to frame an answer, to prepare for trial, to make his defense, nor whether, in fact, the writings contain anything which, in any view of the case, could be relevant to, or material or competent in, the cause.

There is an entire absence from the application and affidavits of any allegations showing the - necessity for the inspection. The portions of the affidavits quoted above contain the only allusions to- the subject, and no facts whatever are there stated, but only the bald legal conclusions of the affiants that such inspection is necessary. This is wholly insufficient. It is a matter for the court to determine from the facts set forth whether such necessity exists as is contemplated by the statute, for it is only under such conditions that the right of privacy must give way to- the dictates of public policy. The applications, including all the moving papers, must be sufficient to invoke or set in motion the jurisdiction of the court to which the application is made; otherwise the court is without power to make the order petitioned for. In this instance it is wholly insufficient in the particulars herein designated, and the order of inspection made on November 21, 1903, is annulled and set aside.

*Order annulled.*