Corn Products Refining Co. v. Dreyfus Bros.

• Decision Date: 11 January 1912
• Parties: CORN PRODUCTS REFINING CO. v. DREYFUS BROS.
• Court: Alabama Court of Appeals

57 So. 517

3 Ala.App. 529

CORN PRODUCTS REFINING CO. v. DREYFUS BROS.

Court of Appeals of Alabama

January 11, 1912

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the Corn Products Refining Company against Dreyfus Bros. From a judgment of nonsuit, plaintiff appeals. Appeal dismissed.

Ball &amp Samford, for appellant.

Steiner, Crum & Weil and Coleman, Dent & Weil for appellee.

DE GRAFFENRIED, J.

The appellee, under the provisions of section 4049 of the Code filed interrogatories to the appellant. The appellant filed in the cause what it claimed was a proper answer to the interrogatories; but it did not answer all of the questions contained in the interrogatories. It gave as its reasons for failing to answer all of the questions that some of the questions it was unable to answer, and that the other questions not answered called for matters not pertinent to the issues in the cause.

Section 4055 of the Code provides that if the answers to such interrogatories are not filed within 30 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 tax him with such costs as the court may deem just, and continue the cause until full answers are made, or direct a nonsuit or judgment by default, or render such judgment or decree as would be appropriate if such defaulting party offered no evidence. The appellee filed in the cause, on the 9th day of January, 1911, a motion to direct a nonsuit of the plaintiff in said cause, or that the plaintiff be attached and required to answer fully in open court, or be taxed with so much costs as might appear to be just, and the cause continued until it made full answers to said interrogatories. This motion was heard by the court on December 14, 1911, and the counsel for the appellant stated to the court that if the appellant would answer the interrogatories at all it could answer them before January 1, 1912. Thereupon the court made an order requiring the appellant "to file its answers to the said interrogatories on or before January 1, 1912." The bill of exceptions then recites that "thereupon, immediately upon said judgment being rendered, the plaintiff stated to the court that, on account of said adverse ruling and judgment requiring it to answer said interrogatories on or before January 1, 1912, it had become necessary for it to suffer a nonsuit, and that it would accordingly take a nonsuit, and thereupon it took a nonsuit, with leave to present and have allowed and signed a bill of exceptions to reverse said ruling and judgment for the decision of the Supreme Court, and said nonsuit was accordingly entered by the court in said cause."

1. The only source of right to appeal from a judgment of nonsuit, voluntarily taken, is found in the Code of 1907, § 3017, which provides that if, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission, or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit the plaintiff may take such nonsuit, and, in the manner provided by the statute, have the particular adverse ruling which created the necessity for the nonsuit reviewed by an appellate tribunal. The defined necessity for such nonsuit must be shown by the record, in order that the right to appeal may appear. Long v. Holley et al., 157 Ala. 514, 47 So. 655.

In the case of Scheidegger v. Terrill, 39 So. 172, the Supreme Court held that the sustaining of a motion made by the defendant, after the plaintiff has announced readiness for trial, to suppress depositions taken by the plaintiff is a "decision of the court on the trial," within the meaning of section 3017 of the Code; and that the plaintiff in such a case may, on account of the suppression of...