*182ON MOTION FOR REHEARING
Mr. Justice Garwooddissenting.
When the opinion of the Court was first handed down, I merely noted my dissent, but on the motion for rehearing have concluded to specify the reasons therefor.
A general reason is that, while the decision takes an admittedly free or “nontechnical” position in bypassing the point on which the writ of error was granted and deciding for the respondent on a point which she actually did not raise in the Court of Civil Appeals, it is yet technical in the undesirable sense of that word in what I consider its narrow and literal application of Rule 202 of the Rules of Civil Procedure.
Another general reason is that the Court — at least as I construe its opinion — is too greatly concerned with the individual welfare of the respondent and too little with the welfare of the administration of justice in the trial courts. When we say that the dismissal of a clearly recalcitrant plaintiff’s suit is such a “harsh” thing that we must construe rules so as to repudiate the action of the trial judge, who sought thus only to vindicate the authority of the courts, and must restrict him to such powers as are spelled out in the Rules in haee verba, we exaggerate. Obviously dismissal is not in and of itself dangerously drastic, or we would not have made express, unqualified allowance for it in Rules 170 and 202, thus — and quite sensibly — leaving the use of the power to the discretion of the judge, who is not unnaturally assumed to be a person of discretion. Still more obviously, dismissal is not “harsh” where, as here, the plaintiff, without ever giving any reason except a purely “technical” one, deliberately stalls for weeks the machinery of justice, consumes much time of lawyers, notaries, clerks and judges and, after more than ample notice to appear and produce the check, as she was lawfully and solemnly commanded to do, persists in refusing in the face of a motion to dismiss and the evident threat of the judge to grant it. Most any compulsion is in a sense harsh, but, in an even more proper sense, it is not harsh where the conduct of the party in question virtually “asks for it.” In this connection it is of interest that the respondent-plaintiff never has given any reason on the merits as to why production of the check was withheld, but on the contrary expressly stated in the Court of Civil Appeals that she “had no motive in refusing to produce said check other than sincerely believing that she was not compelled to produce documents upon the order of a Notary *183Public.” (Her first refusal occurred before any order or subpoena from any source was suggested, and, of course, the subpoena itself was signed by the clerk upon order of the judge himself.) Obviously the check was material to the case, not confidential, and the respondent-plaintiff had at all times admitted that she had it.
But we say that even if she virtually invited the dismissal, the trial judge yet acted without authority in dismissing the suit. We say that Rule 202, supra, which expressly authorizes dismissals where the subpoenaed party “fails to appear in answer to the subpoena,” does not apply, because, although the witness admittedly did not appear (or appear with the check) as validly commanded, her only important recalcitrance was failing to produce the check, and Rule 202 says nothing about failing to produce documents.
A sufficient answer to this argument is that if we are to construe narrowly the “fails to appear” in Rule 202, we must logically apply it only to failure to be present, because it says no more about testifying than it does about producing documents and testifying with regard to them. Obviously we will not deny the power of the judge to dismiss where the litigant actually appears but refuses to testify, although the rule says nothing about failure “to testify.” Why then, as a matter of “construction,” should we deny the same power in respect of failure to produce and testify about documents, because the rule does not mention that matter? Clearly the phrase “fails to appear” in the rule is used in the broad sense of “failure to obey the subpoena,” and to construe it as meaning “failure to appear or to give purely oral testimony but not failure to appear or produce documents” is not only illogical, but also an undesirable undermining of the discretion which trial judges ought to enjoy in matters of this kind. They have little enough as it is, and, considering that they are at least presumptively learned, unbiased and discreet officers, we ought to lean toward resolving doubts in their favor rather than otherwise.
I can imagine no good reason to interpret “fails to appear” as including “fails to testify after appearing” and yet not including “fails to produce and testify about documents of which the subpoena commands production,” unless it be that other provisions of the Rules prohibit the issuance of a subpoena duces tecum without previous notice — the point on which the writ was granted, but on which we omit to pass. In my opinion the power of a court to issue a subpoena duces tecum exists *184apart from Rule 167, which' refers to the equitable process of discovery, so that the subpoena' in the instant case Would hávé been valid even if issued without previous notice to the respondent — plaintiff, although subject to her motion to quash or limit it, if the document' should for some reason be not a proper subject matter for production. In any event, I see no reason why, under theories of waiver, substantial compliance or harmless error, the judgment of the trial court should not be sustained. At the very outset — while the deposition of the respondent-plaintiff was being taken and when she was requested to produce the check, her lawyer said that she did not have to, and would not, produce it, notwithstanding the deposition should be adjourned for the express purpose that steps could be taken to make her produce it. The fact that the lawyer may have thought that the notary himself would attempt to issue the subpoena is not material, although, as stated, the first refusal antedated any talk about subpoenas. Thereafter the subpoena was issued by the clerk of the court pursuant to order of the judge and duly served, and several days later the respondent-plaintiff was served with ample notice of the motion of the petitioner-defendant for dismissal of her suit for failure to produce in response to the subpoena. If any question was raised on her behalf, at or before the hearing on this motion, to the effect that the check was confidential, or otherwise not a proper subject of enquiry on the merits, neither the record nor briefs anywhere suggest it. Her aforementioned statement in the Court of Civil Appeals about her “motive” confirms that she raised no such question.
Now the only purpose of the provision for notice in Rule 167 is to afford the party in question opportunity to consider and debate the propriety of the discovery. The respondent-plaintiff had more than ample opportunity to debate the matter but never did so or had any intention of so doing, sought to avoid production of the check on purely procedural grounds and persisted in this attitude in the face of the hearing on the motion for dismissal. No doubt, the dismissal would have been revoked by the judge even after he had ordered it, if only she had consented to produce the check, but she and her lawyers like “Bill O’Day” decided to “die maintaining their right of way” (if any), and I think they should be treated accordingly. Eventually, in the Court of Civil Appeals, they did conclude to produce a photostatic copy of the check as part of a so-called Motion to Remand, but this was at best rather late in the day, after much time and trouble had been uselessly wasted.
*185I would reverse the decision of the Court of Civil Appeals and affirm that of the trial court dismissing the suit.
Opinion delivered October 10, 1956.
Rehearing overruled October 10, 1956.