Beem v. Farrell

Citation135 Iowa 670,113 N.W. 509
PartiesBEEM ET AL. v. FARRELL ET AL.
Decision Date23 October 1907
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

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

Action on a promissory note purporting to be signed by the defendants E. D. Farrell, Thomas Farrell, and Anna Farrell. The defendants answered jointly, and denied that they ever signed the note in suit, and assert that the same is a forgery. Further, they answer that the note is void because not stamped as required by an act of Congress relating to the revenue, in force at the time the note purports to have been executed. Trial was had to a jury, and there was a verdict in favor of Thomas Farrell, and in favor of plaintiffs as against the defendants E. D. and Anna Farrell, and these last-named defendants appeal. Reversed and remanded.

See 108 N. W. 1044.

Healy Bros. & Kelleher, for appellants.

Sullivan & McMahon and E. A. Morling, for appellees.

BISHOP, J.

To their answer the defendants attached interrogatories to be answered by plaintiffs relating to the matter of the execution and delivery of the note in suit. 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 used 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 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. 259.

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, 63 Hun, 629, 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 by filing interrogatories, in much the same manner as a deposition might be taken, has been held to contemplate an informal deposition, “to be treated as any other deposition,” and therefore available to either party. Standard Life & Acc. Ins. Co. v. Tinney, 73 Miss. 726, 19 South. 662. But, treated as any other deposition, we think the answers are subject to all the objections which might be made to a deposition. For instance, if the party answering should speak with reference to his information and belief, as contemplated in Code, § 3604, then certainly, when this deposition is offered in his own behalf, the answers which are made “from the information of others” could be excluded, because incompetent. See Code, § 4712. We see no reason why the objections which might be made to any deposition under Code, § 4709, that the witness is produced in court, may not therefore be made to the answers of a party to interrogatories propounded to him, when he himself seeks to have these answers used by way of deposition.

The question which we have here for consideration is somewhat analogous to that raised in Lanza v. Le Grand Quarry Co., 124 Iowa, 659, 100 N. W. 488, with reference to the admissibility on a subsequent trial of the transcript of the evidence taken in shorthand on a former trial. In that case we held that the statute authorizing the use of the transcript in evidence as a deposition supplied the grounds for the taking of a deposition, but that, if the witness was present on the second trial, the transcript of his evidence was to be excluded, just as his deposition would be excluded under like circumstances. S...

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