-

~~~~~

IN THE

Supreme Court of Appeals of Virginia

LEE LONG

v.

A. L. HAWSE

BRIEF ON BEHALF OF APPELLEE

\iVILLIAMS
CYRUS

w.

RALPH

T.

&

MULLEN,

BEALE,
CATTERALL,

Attorneys for Appellee.

THE WILLIAM BYRO PRESS, INC ., RICHMOND, VA,

.; A

IN THE

Supreme Court of Appeals of Virginia

AT RICHMOND

LEE LONG
1}.

A. L. HAWSE

BRIEF ON BEHALF OF APPELLEE

STATEMENT OF FACTS AND ISSUES

This is a pure bill of discovery filed by Lee Long

against A. L. Hawse.
Hawse has brought an action at law against Long on
twelve negotiable promissory notes executed by Long and
held by Hawse. ( R. p. 2.) Long admits that he executed
the notes (R. p. 3.)
Long's defense is that the notes sued on were renewals
of original notes obtained fraudulently by S. M. Newton
with the knowledge of Hawse. (R. pp. 3, 17, 26, et seq.)
It is important to bear in mind that there were two
series of. notes, referred to .throughout the record as the

2
Qriginal notes and. the renewal notes. The renewa] notes

are also referred to as the notes sued on or the notes mentioned in tlle notice of motion for judgment.
.~The fraud oomplained of. by Long is alleged by him to
invalidate the original no.tes. .The discovery he demands
~.riot ~nc~rn the original notes, but only the renewal
notes.
In his petition for appeal, Long alleges (R. pp. 3, 4.) :
'' (c) That the notes in the notice aforesaid mentioned were renewals of the original notes dated May
18, 1923, (which had been discounted) which renewals were. given at the express instance and request
of said Hawse (and later taken up by him) with the
express ~eement at the time of such renewals that
said renewals in the hands of said Hawse would be
subject to the same defenses and off-sets to which the
originals would have been subject to in the hands of
said Newton."
And in his plea filed in the action at law, Long alleged,
(R. p .. 30):

''Thereupon, the said A. L. Hawse, upon whose

endorsement the said notes had been discounted, approached the said defendant and requested him, as
ali accommodation to him and to the said Peerless
. oncompany of which he was a director u.nd stock. holder, and to save him and the said Peerless 011
Company from great loss and injury and to prevent
. . the liolders. of said notes of the defendant .from then
~d there insisting upon the payment of said notes
and .taking steps to enforce the payment thereof
~ .:~in;st said Hawse, to renew the same, and this the
.,. _, .; said defendant at the special instance and request
:, ... Qf: the ,said A. L. Hawse .agreed to do,- with the. dis-

3
tinct understanding and agreement with .the said
A. L. Hawse and upon the condition that as between
this defendant, the said A. L. Haw:se, and the Peerless Oil Company, tpere .would be no liability upon
this defendant, and this 'defe~dant would have the
right to set up and avail himself of all the defences
which he theretofore bad or might be. entitled to
against the payment of said notes should the same
be thereafter taken up by the. said A. L. Hawse, the
said S. M. Newton, or the said Peerless Oil Company.''

It thus appears that the notes sued on were handed

directly by Long to. Hawse. Long must. therefore know
who Hawse got the notes from and the circumstances attending their delivery. The discovery sought is contained
in three interrogatories, (R. p. 19) :

'' 1. What connection, if any, did he and the said

S. M. Newton have with the organization and conduct _of the Peerless Oil C~mpany of l{ansas, Inc. Y
"2. 'Vhen and under what chcumstances did he
becon1e the holder of the notes and each of them set
forth and referred to in the notice of the motion for
judgment herein Y
'' 3. From whom did he receive the said notes and
each of then1, and what was the consideration for
the transfer and delivery of said notes and each of
then1 to him, the said Hawse Y''

These interrogatories say nothing whatever about the

original notes, but ask only about the renewal notes, the
notes referred to ~n the notice of motion for judgment
Long's defense is based on the allegation that the o:riginal
notes were obtained from him fraudulently and his interrogatories refer only to the renewal notes, and his plead-

4
ings show that he gave the renewal notes directly to
Hawse and that the consideration was the surrender of
the original notes. Consequently the claims made by Long
on this appeal that a discovery of the fraud practiced on
1.ll.ID inobtaining the original notes is essential to his defense are beside the point. Even if Long were entitled to
a discovery of the circumstances under which the original
notes were obtained, it would be immaterial on this appeal, because .his bill does not ask for discovery of those
circumstances.
Before bringing this bill for discovery, Long made two
previous efforts to obtain the same relief, first, by asking
for a bill of particulars (R. pp. 35, 36) and, second, by
filing interrogatories in the law suit, (R. pp. 33, 34, 35).
-That the discovery sought in the law suit was the saine
as that prayed in the equity suit appears by comparing
the interrogatories in the law suit (R. p. 34) with those in
the equity suit (R. p. 19), and is conceded by appellant
(R. p. 5).
There are only three issues presented by this appeal:
1. Is a party entitled to discovery of facts which he
swears he knows? (R. pp. 30, 31, 32. The transcript
fails to show execution of the affidavit but since the
statute requires the plea to be sworn to it can be assumed
that this was done).

2. Will a bill of discovery lie in Virginia in cases where

the remedy at law is adequate?
3. After filing interrogatories in the law suit, may the
party withdraw the interrogatories and have a bill in
eqUity for discovery?
'

'

,.

ARGUMENT.
Point I.

A PARTY IS NOT ENTITLED TO DISCOVERY OF

FACTS HE ALREADY KNOWS
Vve have shown in the foregoing statement that Long
handed the notes sued on to Hawse as renewals of the
notes previously given and that, according to Long's own
plea and petition for appeal, he was an eye-witness of the
principal facts whicbl he asks Hawse to discover. Thwt a
bill of discovery was never meant for such a purpose is
recognized by the allegations of the bill :filed in thi"s case.
The bill alleges (R. p. 19) that Long cannot safely go to
trial without the discovery and that the things referred
to. ''are peculiarly within the knowledge of the said
Hawse."
The first requisite of any bill in equity is that the complainant needs relief. In the case of a. bill of discovery,
the complainant must show that he needs information.
In the case of a mixed bill of discovery he must show that
the information is indispensible to him. But even in the
case of a pure bill of discovery, such as we have here, he
must show that he stands in some need of the information.
In 18 C. J. 1067, speaking of a bill of discovery, it is
said:
''It cannot be maintained to discover matter
whereof complainant has the same means of information as defendant ... "\Vhere the bill and the exhibits show that the complainant already has the information he pretends to seek, discovery will be
denied.''

In McFarland v. Hunter, 8 1Leigh 489, the court points

out that in a mixed bill of discovery the plaintiff must
show that he has no other means of proving his case. The
rule in_ regard to a pure b~ll ~s not so ~tr~gent. But eve~
ma ptire bill, the complainant must at least ''think some
of the links defective andthat the discovery may bematerial and necessary to make them perfect.'' (8 Leigh
at page 493, quoted iil petition for appeal, page 14. In
the original report only the word ''material'' is italicized).
There is nothing inconsistent with our theory of the
law in the dictum from Larkey v. Gardner, 105 Va. 718,
quoted from and italicized on page 13 of the petition for
appeal. The dictum is to the effect that in a pure bill of
discovery, the complainant need only show that he seeks
the aid of the court of ~quity ~'to make the applicant
stronger in a court of la1iJ. '' . If. the applicant already
knows the facts, the discovery will not make hhn any
stronger.
.
.
A case on all fours with the case at bar is Duratnt v.
Goss, 12 F. (2d) 682, (C. C. A., 6th C., 1926).
~hat was a pure bill of discoyery: . Durant had sue(J
Goss at law fo~_converting 1900 sh~. of Chevrolet stock,
which he had. loaned to Goss. In qenying Durant's right
to have a bill of discovery in aid or liis action at law, the
court said, (p. 68"3) :
''Plaintiff has equal knowledge with defendant
whether these shares of stock were or were not
loaned bi him to defendant, nor. does plaintiff re..
quire any disclosure. from the defendant to prepare
his pleadings.''

Point II..

APPELLANT IS NOT ENTITLED TO THE AID 0},

A COURT OF EQUITY, BECAUSE THE
REMEDY AT LAW IS ADEQUATE
Sections. 6~36 and 6237 of. the Code of Virginia give the
appellant a complete and adequate remedy at law and a
much speedier remedy than was ever obtainable in equity.
They give him the right to have answers given and papers
produced in advance of the trial at law in all cases where
l1e could have had such relief in a court of equity.
Section 6238 of the Code p~ovides :
''The two preceding sections shall not preclude a
person, who does not file such interrogatories or
affidavit, from exhibiting his bill in chancery for a
discovery, as he might have done if. the said sections bad not been. enacted.''
If the said sections. had not been enacted,. the party
could exhibit his bill in chancery for a discovery, if
the remedy at law was not adequate. The statute saves
hil!l the right to a bill of discovery when the remedy at
law. is. not adequate. But in considering whether the
remedy at law is adequate, it must be borne in mind that
the party is to-day entitled to examine the adverse party
in a law suit as a witness and is entitled to file interrogatories before trial. In other words, OUr pOSition is that
the purpose of Section _623S. is to pre~erve the old equity
jurisdiction subject to. the ~arne prin~iples that have
always governed the eqwty jurisdiction. . tf, for any
reason~ it should turn out that sootions 6236 and 6237 did
not give as full and complete, relief as a' bill in equity,

8
then, and only then, a bill in equity could be exhibited.
Those sections, for example, do not permit discovery of
a chattel. In such case the remedy at law would still be
inadequate.
In_'Fren.ch v. Stange Mining Co., 133 Va. 602, the court
refused to entertain a mixed bill of discovery on the
ground that the remedy at law was adequate, saying, (pp.
616; 617, 618):

''All the information here demanded would be

rea.diJy available in an action at law. The defendant
shippers themselves are competent witnesses and
may be compelled to testify for complainants; and
sections 6236 and 6237 of the Code of 1919 (sections
3370 and 3371, Code of 1887) ptl"ovide a simple and
adequate method whereby, upon proper affidavit or
interrogatories, these defendant shippers may be required to furnish in detail all such information, and
all their books and writings relevant thereto.
"In Lile's Equity Pleading & Practice (2d ed.),
section 152, the author says : 'Bills of discovery are
now, with us, in large measure, superseded in practice
by two statutory provisions, one allowing a court of
law to compel a discovery on oath, in answet to interrogatories filed, where it would be compelled .upon
a bill of discovery, if the interrogatories have not
heen unreasonably delayed; and the other declaring
parties to S'ltits competent to give evidence on their
own behalf, and to be competent and compellable to
attend and give evidence on behalf of any other
party to the proceeding.'
"And, to like effect, in Burks' Notes on Equity
Procedure, page 39, it is said: 'Now that the -defenda~ts are competent witnesses and may be examined by the complainant on any matter involved
mthe litigation, it is very rare that a defendant is
called upon for relief of this kind, as the complainant

has ample remedy by sections 3370 and 3371 of. the

Cod.e.' . (Sections 623~ and 6237, Code. 1919.)
. ''It. i~ true that section 6238 of the Code (section
3372, Code of 1887) provides that 'the two preceding
sections shall no.t preclude .a. person, who 'does not
file such intetrogatories or affidavit, from exhibiting
his bill in chancery for a discovery, as he might have
done if the said sections .had not been enacted.' .But
this provision has no effect upon the rule already
pointed out that where, as here, the disclosure is
sought for the enforce'Ill:ent of a purely legal demand
tl1e diRcovery must .be essential to the plaintiff's case.
The statutes referred to do not abolisli the. relief in
pure bills of discovery, or in bills for disc()very iri
aid of the enforcement of an equitable right;. but it
would seem that they do have the effiect of eliminating this remedy 'in mixed bills of discovery, when
the jurisdiction at law is sought to be transferred to
a court of equity, on the sole ground that discovery
in equity is necessary.' Johnson v. Mundy,-123 Va.
730, 744, 97 S. E. 564, 569. At any rate, if the
statutes in question do not go to the full extent here
suggested, it is clear that they reduce to a minimum
the cases in which a discovery in equity may be
availed of in transferring to that forum jurisdiction
of a legal cause of action. The cases must be rare
indeed, if any, in which, under the broad provisions
of our present statutes, a plaintiff may not obtain as
full disclosure in aid of his 1ega1 cause of E,t.Ction as
he could obtain by a bill of disc9very. If there be
such exceptional cases, this is not one of th~m.''
We submit .that the reasoning :which the court applied

to a mixed bill applies equally to a ptt.re bill. What the

court did was to place the right' of complainant to exhibit
his bill on".the sit.nie grounds as before. th~ statute was
passed; liut in considering :. wheth~r .the .discovery in

10
equity was essentittl to complainant the court did not shut
its eyes to the existing statutory, legal remedies. So, in
passing on the right to :file a pu're bill o~ discovery, the
court should also consider the existing statutory remedies in'deciding whether the complainant has any need Ol'l
use whatever for the interposition of the extraordinary
powers of a c~urt of eq~ty.
It has always been the practice of courts of equity to
refuse discovery in aid of another suit, if the.court where
the other suit was pending had power to compel the discovery. Mr. Justice Story, writing long before parties
were compellable to testify at law, said, (Equity Juris.,
14th ed., sec. 1943):
"In the next place Courts of Equity will not entertain a bill for a. discovery to assist a. snit in an. other court if the latter is of itself competent to
grant the same relief; for in such a case the proper
exercise of the jurisdiction should be ]eft to the
functionaries of the court where the suit is depending.''
we submit that this well known principle of equity
jurisprudence was not ~eant to be abolished by the section of the Code preserving the right to a bill of discovery.
.Analogies from other jurisdictions lead to the same result. Under the New York practice, the adverse party
may be examined orally befor~ the trial of a law suit. In
Fur~ Wool Trading Co. v. Gearge I. Fox> 2~5 N.Y. 215,
1~6 N. E. 670; (1927), the cou.rt said:
''. . . the action ma.y not be sustained as a bill of
. :discovery, brought as such a .bill was, not as an end
.in itself but as an aid to an independent proceeding.

11
A .complete remedy of this character being otherwise
provided, such an aetio~ no longer survives.''
United StateS Revised Statutes sec. 724 (U. S. C. A..
Title 28, sec. 636) empowers the law court to compel the
adverse party' to produce.doc~ents material to the case.
The production is compellable only at the trial and not
before the trial (Carpenter v. Winn, 221 U. S. 533) and
to that extent is less valuable than a bill of discovery.
Nevertheless, the federal courts hold that if production
at the trial is all a party needs! it is all he can have and a
bi II of discovery will not lie.
In Duroot v. Goss, 12 F. (2d) 682, previously cited
above, the court said:
_ ''Section 724, R. S., has so enlarged the powers of
courts of law to order and require the production of
the possession or control .of
books or writings
either plaintiff or defendant as to make the equitable
remedy ptactically unnecessary, but it does not affect
the jurisdiction of a court of equity to entertain a
bill of discovery in aid of an action at law, where the
bill presents a case calling for the e~ercise of such
p<;)wer. Carpenter v. Winn, supra; General Film
Co. v. Sampliner (C. C. A. 6) 232 F. 95, 146 C: C.. A.
287. If the legal remedies .are slicient, the jurisdiction will not be exercised. Like any other equitable
remedy, it is exceptional, and .the plaintiff must
bring himself within the exception.''

m.

* ...

''The plaintiff has filed in the law action, in aid of

which this bill of discovery is :filed, a petition and
motion for an order requiring defendant to produce
books and ~tings in. his possassi~n~ . _Und~r $e
.provisions of section 724, -R... S:,. the c~urt in which

12
the law action is pending has authority to grant him
all the relief in this respect to which he .is entitled.
His bill of complaint in this case, read in connection
with his petition in the law action, presents no such
state of facts as would require the intervention of a
court of equity by the exercise of its power to compel disclosures.''
In Equitable Life Ass. Soc. v. B-roorn, 213 U. S. 25, 50,
-the court said :
"Equity does not now take jurisdiction in cases
of fraud where the relief ptoperly obtained on that
ground can be obtained in a court of law, and where,
so far as necessary, discovery may be obtained as
well as in equity.''
In considering the probable meaning of Code Section
6238, we ma.y advert to the probable policy of the legislature in providing for discovery at law. That policy must
have been not merely to allow discovery, because that was
already obtainable in equity. The main policy must have
been to avoid the expense and delay of separate and ancillary proceedings in a different court. Indeed the very
reason why the appellant in this case resorted to the legal
remedy in the first instance was ''in the hope of avoiding
the delay tha.t would be involved in a resort to a court of
chancery,'' (R. p. 5). The record in the case at bar demonstrates that the policy of preventing delay will be defeated unless this court applies the rule foteshadowed in
French v. Stange Mining Co., supra; that the equitable
remedy is available only when the legal remedy is inadequate. The notice of motion was originally returnable
On J)ecem.ber 19, 1928. (R. p. 20).- It was not until April
16; 1929, that appellant filed his interrogatories in the

13
clerk's.office. (R. p. 34). By thattime thecasehad been
set for trial by order of the court. ( R. p. 34). The appellant then obtained a .continuance over the objection of
appell~e until JnnelS, 192~, ~n the gro~d of an absent
witness. (R. p. 34). Pe~ding this continuance, and on
April24, 1929, the bill for discovery was filed. (R. p. 16).
On May 24, 1929, the Chancery Court dismissed the bill.
(R. p. 36). On June 14, 1929, four days before the date
set for the trial of the action at law, the petition for appea.l
was filed. The record of course does not show when the
~ction at law will be tried, but it shows that the delay will
be considerable, in spite of the fact that tw~ eminent
judges, those presiding respectively over the Law &
:E~quity Court and the Chancery Court of the City of Richmond, have decided, quite apart from matters of procedure, that appellant is not entitled to any discovery at all.
Point III.

BY FILING INTERROGATORIES IN THE LA"\V

SillT, APPELLANT IS PRECLUDED FROM
SEIDKING THE SAME RELIEF IN EQUITY
The learned chancellot in the com.1; below, in .addition
to holding, by sustaining the demurrer, that appellant
was not entitled to relief by way of discovery; also held,
by sustaining plea number one, that even if appellant
would have been entitled to relief in equity, he abandoned
that remedy by first applying for the s~me relief to the
law court.
Piea in bar number one .(.R. ,p. 33) all.~ged that Long
.had :fil~d interrogatories in the law court and was there-fore precluded from coming into equity. W~t )lapp~ned
in the law co1,1r.t is shown- b.y th~. orde;r of the _Law &
Equity Court copied on pages 34 and 35 of the r~cord.

14
Long filed his interrogato1ies seeking the same relief
he now asks and Hawse, by motion to quash the summons,
objected that the interrogatories were not such as he was
required to answer. After argument, the court announced
that in its opinion the position taken by Hawse was correct and should be sustained. Long then, by leave of the
court, and over the objection of Hawse, withdrew the interrogatories.
Code section 6238 says :
''But a person :filing such interrogatories or affidavit, shall not afterwards exhibit a bill in equity
against the same party for the discovery or production of the same matters.''
The interrogatories were filed in the law court, not only
by filing in the clerk's office, but also by order of the
court. The language of the order is (R. p. 34):
'' . . . the summons containing said interrogatories being now filed and made a part of the
record ... ''
It is true that the interrogatories were then stricken
from the record, but the statute expressly ba.rs a bill in
equity if the interrogatories have been once :filed and contains no exception if they are afterwards withdrawn. The
manifest purpose of this part of the statute is to keep
the party seeking discovery from harrassing his adversary by repeated applications for the same relief. If
appellant's p~sition be c()rrect, the party seeking discovery would always have two chances of getting it, once
at law and once again in equity.
We submit that section 6238 should not be construed

15'

with reference to the technicalities defining what papers

have been ''filed'' so as to constitute part of the record.
It should be so construed as to produce equality of right
between both parties and not leave it to the option of the
party filing interrogatories to withdraw them if the decision of the court is about to go against him. The purpose of the statute is visible on its face. It was to substitute a simple and expeditious remedy for the former procedure in equity; it was not to substitute two proceed. ings for the previously existing single proceeding.
CONCLUSION
Appellant is not entitled to discovery either at law or
equity. That is the decision of two courts. Appellant
already knows the facts, or claims to know the fa.Cts of
which he seeks discovery. Of course appellee's demurrer
does not admit the pleader's conclusions of law.
The statutory legal discovery preserves the bill in
equity only in cases when it would lie at common law,
namely when complainant could not get the same relief
in the law court. Any relief to which appellant is entitled, he can obtain in the law court.
Independently of the correctnes~ of our first two
propositions, section 6238 forbids application to a court
of equity, after interrogatories have been filed in the law
court.
Respectfully submitted,
CYRUS

w.

& MULLEN,
BEALE,

RALPH

T.

CATTERALL,

WILLIAMS

Attorneys for Appellee.

INDEX
Page
STATEMENT

oF FAcTs AND IssuEs. . . . .

...
5
Point I. A party is not entitled to discovery of
facts he already knows. . . . . . . . . . . . . . . . . . . . . . . . 5
Point II. Appellant is not entitled to the aid of a
court of eqUity, because the remedy a.t law is
adequate . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . 7
Point III. By filing interrogatories in the law suit,
appellant is precluded from seeking the same
relief in equity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CoNCLUSION ... . . 15

ARGUMENT

TABLE OF OASES

Page
Carpenter v. TVinn, 221 U. S. 533 .................. 11
Durant v. Goss, 12 F. (2d) 682 .................... 6, 11
Equitable Life Ass. Soc. v. Brown, 213 U. S. 25. . . . . . 12
French v. Stange lllining Co., 133 Va. 602 .......... 8, 12
F1u & Wool Ttading Co. v. George I. Fox, 245 N. Y.
215, 156 N. E. 670 ............................... 10
Larkey v. GardnlPr, 105 Va. 718.................... 6
llfcFu.rland v. Hunter, 8 Leigh 489......... ... . . . . . . . 6
18 Corpus Juris 1067. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Story's Equity Juris., 14th ed., sec. 1943 ............. 10