In using the words plaintiff and defendants I have reference to the replevin suit. I do not believe that a court of law has the inherent power to order into court for the purpose of determining whether plaintiff has a cause of action the subject-matter of the litigation. And that is all that I can see in the order in this cause. The motion upon which the order is based is a follows:
"Comes now the plaintiff in the above entitled cause and states that the diamond involved in said cause as the subject-matter of the controversy is in the possession of defendants, Peter Murphy and Alice Johnson, and has been in their possession and under their control continuously since some time before the filing of this suit; that the question of identity of said diamond when it was in the possession of the plaintiff and tiff claims that said diamond is his own property, which was lost by or stolen from him and in some manner came into possession of said defendants, and that the diamond claimed by plaintiff has a fault or defect peculiar in its nature; that various persons knew said diamand when it was in the possession of the plaintiff and would be able to determine upon inspection of the diamond in the possession of the said defendants whether it is the same diamond which was formerly in the possession of the plaintiff, and that such inspection and identification is necessary to determine the issue of ownership and right to possession thereof, and plaintiff knows of no other or better method or manner of having the identity of said diamond determined. Wherefore plaintiff moves the court for an order requiring the said defendants to produce and have said diamond at the trial of this cause as now set on Monday, October 20, 1919, or at such other time as the same may be heard in order that the same may he used as evidence in said cause."
Plaintiff presumably alleges in his affidavit that he is the owner of the diamond. In his motion he alleges that said diamond, that is the one he owns, is in the possession of defendants. The court in making the *Page 299 order finds that said diamond, that is plaintiff's diamond, is in the possession of defendants, "and that it is necessary, reasonable and proper that the said diamond should be produced." If the court found from the evidence on the motion that defendants had plaintiff's diamond, then a jury or the court sitting as a jury could so find in replevin or conversion, and I can see no application here of the principle laid down in State ex rel. v. Anderson, the case relied on in the majority opinion. It appeared in the oral argument that one or both of the defendants in the replevin suit, were prosecuted by plaintiff in replevin for larceny for stealing this diamond, and that the diamond was in court and inspected and examined, and that defendants were acquitted because plaintiff in replevin could not satisfactorily identify the diamond. Had he been successful in prosecuting the criminal cause he might have had restitution under section 5332, Revised Statutes 1909. Failing to successfully invoke the arm of the criminal law, plaintiff proceeds in replevin and arms the sheriff with the writ. The sheriff goes in quest of "a diamond," and returns without one. Plaintiff is unwilling to proceed in the usual way, but invokes a power of a law court heretofore not exercised, if possessed, in this state or any other, and the court in response to this appeal orders the defendants to produce the diamond in order that plaintiff may have the second fall with a jury as to his ownership. It is conceded that the diamond ordered produced is the same diamond in evidence in the criminal case. Plaintiff makes no claim that the diamond he lost and which he now alleges is in the possession of defendants has any value to him except its intrinsic value in dollars and cents. Defendants do not claim to own the diamond, and it may be plaintiff's, but he it not entitled to have such an extraordinary exercise of power in order to ascertain whether he has a cause of action. I apprehend that there is more feeling that merit in plaintiff's motion. That the procedure in this replevin suit is somewhat of a departure I think will be conceded, and I think it is safer to indulge in no *Page 300 doubtful departures. If the court can order the diamond in court in this replevin suit then any other chattel about which there is a dispute in replevin as to identity may be ordered up, as for example a mule, a horse, a cow, a goat, a sheep, etc.; and if such chattel is not suitable for presentation in court, it may be anchored at some convenient spot or place, and plaintiff and his witnesses may "view" the res, and fresh from the scene unfold the recently formed opinion as to identity to the jury. This is not the usual way that experience has tested and approved.