Beem v. Farrell

• Citation: 108 N.W. 1044
• Parties: BEEM ET AL. v. FARRELL ET AL.
• Decision Date: 21 September 1906
• Court: United States State Supreme Court of Iowa

108 N.W. 1044

BEEM ET AL.

v.FARRELL ET AL.

Supreme Court of Iowa.

Sept. 21, 1906.

Appeal from District Court, Kossuth County; W. B. Quarton, Judge.

Action on a promissory note alleged to have been executed by defendants to the plaintiff Stephens and to be the property of the two plaintiffs. The defendants denied the execution of the note, and the jury returned a verdict for plaintiffs against defendants E. D. Farrell and Anna Farrell, and against the plaintiffs in favor of the defendant Thomas Farrell. Defendants E. D. Farrell and Anna Farrell appeal. Reversed.Healy Bros. & Kelleher, for appellants.

Sullivan & McMahon and Morling, for appellees.

McCLAIN, C. J.

1. Defendants in a joint answer denied under oath their signatures to the note and alleged that it was forged by plaintiffs or their agents, and they also set up the defense that the note was void and illegal because no revenue stamp was attached as required by act of Congress. To this pleading defendants attached interrogatories to be answered by plaintiffs relating to the alleged signing and delivery of the note sued on. At the trial plaintiffs' answers to these interrogatories were offered in evidence in their behalf and admitted over defendants' objection that they were incompetent, as the plaintiffs were both present in court. After the answers to interrogatories were read, plaintiff Stephens was called as a witness in behalf of plaintiffs, and testified that the exhibit shown to him was the note referred to in his answers, and the exhibit was then offered in evidence. Thereupon defendants moved to strike Stephens' answers to interrogatories because he appeared in court and testified, and this motion was overruled. Thereupon, counsel for defendants cross-examined Stephens with reference to the subject-matter of his answers to interrogatories. In rebuttal, Beem was a witness and was cross-examined as to the subject-matter of his answers to interrogatories.

Under Code, § 3604, answers to interrogatories propounded by adverse parties concerning any of the material facts in issue “may be read by either party as a deposition between the party interrogating and the party answering.” By Code, § 4684, depositions in a civil action at law can only be taken for use on the trial if the witness is not a resident of the county or is about to go beyond the reach of a subpœna, or is for any other cause expected to be unable to attend court at the time of the trial, and by section 4709 it is provided that the deposition or the record must show the witness to be a nonresident of the county or such fact as authorizes the use of a deposition in evidence and that “no such deposition shall be on the trial, if at the time the witness himself is produced in court.” It is contended for appellants that the answers to interrogatories were improperly admitted when offered as evidence in behalf of plaintiffs, because the plaintiffs who had given such answers were present in court, while it is argued on the other hand that answers to interrogatories are admissible in behalf of either party without the restrictions imposed as to depositions. We do not attempt now to pass upon the right of defendants to introduce these answers in their own behalf regardless of the presence in court of the plaintiffs who had given the answers. As the usual statutory provisions for requiring answers to interrogatories propounded in the pleading are practically a substitute for the equitable bill of discovery, no doubt such answers may be introduced by the party calling for them without regard to whether the party making the answers is present in court and might be called as a witness. As thus used, the answers constitute, in effect, admissions of which the party propounding the interrogatories may avail himself. 1 Pomeroy, Equity Jurisp. (3d Ed.) § 208. Regarded as admissions the party giving the answers is not entitled to avail himself of them, if not introduced by the other party. It is true that a sworn answer to a bill in equity is evidence in behalf of the party answering. Story, Equity Plead. §§ 849a, 875a. But this rule of equity pleading is not applicable to answers given in response to a bill for discovery pure and simple; that is, where no other equitable relief than the securing of the answers under oath is sought. 1 Pomeroy, Equity Jurisp. § 191. In this state the equitable action to obtain a recovery is abolished except in certain specified cases with which we are now concerned. Code, § 3441. Statutory provisions for requiring answers under oath from the opposite party are a substitute for the equitable action for discovery. 1 Pomeroy, Equity Jurisp. (3d Ed.) § 193. It would seem therefore that answers to interrogatories propounded in the pleadings under provisions of the Code, § 3604, are available only to the party propounding the interrogatories, and if he does not see fit to introduce them in evidence, the party making the answers cannot do so. This conclusion has been reached under similar statutes in other states. Wells v. Bransford, 28 Ala. 200; Montgomery Branch Bank v. Parker, 5 Ala. 731; Moore v. Palmer, 14 Wash. 134, 44 Pac. 142; 14 Cyc. 359. No doubt in behalf of the party calling for the answers they are admissible whether the party giving the answers is present and might be called as a witness or not, for as already indicated the answers are in the nature of admissions. Island County v. Babcock, 20 Wash. 238, 55 Pac. 114;Page v. Krekey (Sup.) 17 N. Y. Supp. 764.

The statutory provision that the answers to interrogatories may be read by either party as a deposition seems to contemplate a use distinct from and in addition to that which the party calling for the answers might make of them by introducing them in evidence as admissions, and we think that this distinct use of the answers as a deposition is subject to the restrictions imposed in Code, § 4709, as to the introduction of a deposition when the witness is produced in court. A statute authorizing a party to a suit to take the testimony of an adverse party...