(dissenting). — I reach a contrary conclusion. I think that the writ of certiorari is available to the plaintiffs upon the showing made in their petition therefor. They were not party to the proceeding in which the rule upon them to produce their books was entered. Therefore they could have no remedy by appeal in that case. Nor was there any other remedy available to them in order to obtain a review of the action of the district court. The case therefore'is well within the express provisions of section 4154, which provides for the writ of certiorari as a means of reviewing the action of the lower court “in all cases” where such court “is alleged” to be “acting illegally,” and there is no other “plain, speedy, and adequate remedy.” So far, therefore, as the question of practice is involved, I think the plaintiffs adopted proper procedure.
True, the plaintiff loan company and its officers could have ignored the order and subjected themselves to a commitment for contempt, whereby a writ of habeas corpus would have been available to them. But the lower court considerately and properly suspended the enforcement of ■the order until the question of its legality could be properly passed on by this court, and the plaintiff and its officers have adopted the only procedure available to them for that purpose. The trial 'court could, of course, have enforced its order summarily. If it had done so, then, and not till then, a writ of habeas corpus would have been the only remedy available to petitioners. In view, however, of the suspension of enforcement, an opportunity is presented to review the order of the lower court by this proceeding. To *73deny absolutely the remedy by certiorari is to drive the petitioners to the necessity of committing contempt of court before they can have any remedy at all. It seems to me that this is contrary to both letter and spirit of section 4154. I think, therefore, that we ought to pass herein upon the question of the legality of the order of the trial court.
II. Turning to the merits of the controversy, the order complained of was entered by the district court in purported pursuance of sections 4654 and 4655. The power conferred by these sections is limited in its application to those “papers or books which are material to the jxist determination of any cause” pending before the court. Section 4655 expressly requires that the petition for the production of books and papers shall “state the facts expected to be proved by such books and papers,” and that it must show “wherein they are material.” , The emphasis of the statute is upon the materiality of the books and papers thus sought as a prerequisite to the issuance of a rule for the production of the same. As bearing upon this question of materiality, the showing of facts as it appears in the record before us is substantially as set forth in the majority opinion. The plaintiff loan company issued its negotiable- notes or debentures totaling some hundreds of thousands of dollars, and these passed into the hands of many holders. Lor the purpose of securing these outstanding notes, it put up in the hands of the trustees, notes, and mortgage securities which it held against others. The county treasurer proceeded upon the theory that the mortgage securities so held by the trustees as collateral security for the holders of the plaintiff’s outstanding obligations became thereby the property of the owners and holders of such debenture obligations, and upon the further theory that the collateral mortgage securities so held by the trustees for nonresident, owners and holders of such debenture obligations could be assessed in the hands of the trustees as agents for such *74nonresidents. The .alleged materiality of the books and papers sought to be produced is based upon the claim that such books would disclose the extent to which such collateral securities were held for the benefit of nonresidents. If the proposition is legally sound that the owners and holders of the debenture obligations of the plaintiff were also the owners of the collateral securities in the hands of the trustees in such sense as to be assessable therefor as assets additional to the debentures which they held, then it may be conceded that the books and papers sought were material to a just determination of the case in which the rule for their production was issued. If such proposition is not sound, then such books and papers had no materiality whatever, and the statute afforded the court no warrant for their compulsory production. To my mind, this is the vital question in the case, and it is not dealt with in the majority opinion.
/That a debtor who puts up collateral security in the hands of his creditor to secure his own obligations to such creditor remains the equitable and beneficial owner of such collateral is elementary. True, the creditor has rights in such collateral, but it is no part of • his assets. It is a part of the assets of the debtor, and is to be taken account of in determining his assessment. The creditor holds it as trustee for the debtor, and is bound to account for it under the strict rules which apply to a trusteeship. To illustrate, if a creditor hold the note of his debtor for $1,000 secured by collateral notes for $2,000, the asset of the creditor is not thereby increased in a legal sense by the taking of such security. Nor are the assets of the debtor decreased by the giving of such security. For the purpose of assessing the creditor on such item, the obligation of his debtor to him must be deemed his asset. It could not be deemed trebled because its payment was secured. On the other hand, the $2,000 collateral must bo taken account of in the assessment of the debtor as a part of *75his assets properly subject to offset for his debts. This illustration covers the entire case made by the county treasurer in the proceeding wherein the rule complained of was entered. The real estate mortgages and notes placed in the hands of the trustees by the plaintiff herein for the purpose of securing defendant’s outstanding debenture obligations still remain the assets of the plaintiff loan company. Its creditors had rights of security therein, but these rights were purely incidental to the principal debt held by each creditor, and added nothing to such principal debt as a measure of his asset. If, instead of putting up these mortgage securities in the hands of fixed trustees, the plaintiff loan company had distributed and delivered them to the respective debenture holders, then such debenture holders would themselves become trustees of such collateral, and would become accountable for the same as such to the plaintiff loan company as the equitable owner.
This is perhaps a sufficient discussion to show the point which is in my mind. If I am correct thus far, it necessarily follows that the question whether the holders of debentures Avere resident or nonresident was without any materiality whatever, and the issuance of the rule for the production of plaintiff’s books was wholly unwarranted under the statute. Nor can I .see hoAV such a result can be deemed in any sense an embarrassment to the public authorities. In so far as these securities are assessable, they can be readily reached through the plaintiff as their OAvner, subject to just rights of offset for debts. So far as appears in this record, the plaintiff has always been fully assessed, and, if so, account has necessarily been taken of these assets. If not, the remedy against the plaintiff is ample.
III. The majority opinion holds that, inasmuch as the loAver court had found that the books and papers sought to be produced Avere material, such finding is conclusive upon us upon a review of its action. I can not assent *76to this view. Under this holding, the right of review would be utterly barren. Indeed, no review of the action of the lower court would be possible under any circumstances or by any procedure if its determination of the materiality of the proposed evidence is to be deemed conclusive on the reviewing tribunal. I can see no sound reason why its determination at that point should be any more conclusive upon the reviewing tribunal than its determination of any other legal question which entered into the legality of its order. Surely if the matter were before us on habeas corpus, the question of the legality of the imprisonment would have to be determined by us.
The vital inquiry, in such case would be whether the books sought to be produced were material, and not whether the committing tribunal held them to be such.
Upon this record, I think the writ should be sustained, and the order complained of should be annulled.