Allen v. Lathrop-Hatton Lumber Co.

• Decision Date: 27 June 1890
• Parties: ALLEN ET AL. v. LATHROP-HATTON LUMBER CO.
• Court: Alabama Supreme Court

8 So. 129

90 Ala. 490

ALLEN ET AL. v. LATHROP-HATTON LUMBER CO.

Supreme Court of Alabama

June 27, 1890

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

This action was brought by appellee against appellants, suing them as members of a late partnership and individually; and was founded on a promissory note for a certain amount. Defendants filed pleas, pleading the general issue, denying the indebtedness, and pleading payment. After this plaintiff by its attorney filed interrogatories accompanied by an affidavit, as required by statute, stating that the answers thereto would be material to the plaintiff in said cause. Defendants failed to answer, and the court, on motion of plaintiff, entered judgment by default against them.

Brickell, Harris & Eyster, for appellants.

E W. Godbey, for appellee.

CLOPTON J.

The assignments of error relate to the propriety of the judgment by default rendered against appellants, and to overruling their motion to set it aside. The judgment was entered under the provisions of the statutes providing for and regulating the examination of parties by interrogatories. The statutes provide that either party to a civil suit, his agent or attorney, desiring the testimony of the other party, may file with the clerk interrogatories to be propounded to him, with an affidavit that the anwers thereto will be material testimony for him in the cause; the party to whom they are propounded is bound to answer all pertinent interrogatories unless by the answer he subjects himself to a criminal prosecution; and, "if the answers to the interrogatories are not filed within sixty days after service of a copy of the interrogatories, or when the answers are not full, or are evasive, the court may either attach the party and cause him to answer fully in open court, or continue the cause until full answers are made, or direct a nonsuit or judgment by default to be entered." Code, §§ 2816-2822. Plaintiff filed with the clerk interrogatories to be propounded to defendants, March 20, 1889, copies of which were served upon them. Having failed to answer thereto within 60 days after service of copies of the interrogatories, or to file exceptions to them, or to apply for an extension of time in which to answer, the court entered judgment by default against them August 5, 1889. The sections of the Code above referred to had their origin in "An act more effectually to provide for discoveries in suits at common law," enacted in 1837. By the construction placed upon this act in the early cases, the effect of failing to answer the interrogatories within the prescribed time was precisely the same as if,...