Ex parte Ingalls, 6 Div. 211

• Decision Date: 14 June 1951
• Docket Number: 6 Div. 211
• Citation: 54 So.2d 288,256 Ala. 305
• Parties: Ex parte INGALLS.
• Court: Alabama Supreme Court

Page 288

54 So.2d 288

256 Ala. 305

Ex parte INGALLS.

6 Div. 211.

Supreme Court of Alabama.

June 14, 1951.

Rehearing Denied Oct. 18, 1951.

Chas. W. Greer and Francis H. Hare, Birmingham, for petitioner.

Beddow & Jones and G. Ernest Jones, Birmingham, for respondent.

SIMPSON, Justice.

This is an original proceeding in this court praying that a writ of mandamus issue to the respondent circuit judge with the object of having him set aside an order requiring a party to answer interrogatories propounded by his adversary.

Before stating the question for decision, we will relate the facts superinducing the proceeding: In 1947 Eleanor Ridgely Flick Ingalls filed suit for divorce against Robert I. Ingalls, Jr. The final decree rendered in June of that year granted the divorce as prayed and, among other things, fixed the custody of the two minor children of the parties in accordance with an agreement made and filed in the cause. The children were placed in the custody of their father during the school months and in the custody of their mother during vacation period. Though not necessary, jurisdiction was specifically retained for future control of the custody of the children.

In 1950 Ingalls, defendant in the divorce action, filed a petition seeking modification of the decree to the end that he be given exclusive custody of the children. By way of answer Mrs. Ingalls, original plaintiff, filed what is denominated a cross-petition, inter alia, seeking herself full and complete custody of the children. Both petitions are grounded upon alleged changed conditions affecting the welfare of the children. After filing her 'cross-petition,' Mrs. Ingalls filed interrogatories to Mr. Ingalls, pursuant to Equity Rule 39, Code 1940, Tit. 7, Appendix. On failure of the original petitioner to answer such interrogatories, the cross-petitioner applied to the respondent circuit judge for an order compelling petitioner to answer. Such an order was entered by the judge, calling on petitioner to make answer by a date stated. Thereupon petitioner filed a motion to vacate said order. The respondent judge overruled the motion and this petition for mandamus was presented to this court.

The single question presented is: When a final decree has been entered granting a divorce, and one of the parties to that suit thereafter files in the cause a petition to modify the decree in so far as it fixes the custody of minor children, is either party entitled to propound and require the other party to the original action to answer written interrogatories?

Solution of this question, it is agreed, depends upon an interpretation of Equity Rule 39, Code 1940, Title 7, Appendix, p. 1084, which as pertinent is as follows:

'Examination of parties by each other. (a) Defendant May Examine Plaintiff. If a defendant wishes to examine a plaintiff touching the subject-matter of the bill, or his defense, he may, before or after filing his answer, exhibit interrogatories to such plaintiff, which must be answered under oath within thirty days after service, unless otherwise ordered by the Court; and upon his failure to answer within the time allowed, the bill must be dismissed as to such plaintiff, with costs, unless the time to answer the interrogatories is extended. But filing such interrogatories does not extend the time for answering the bill.

'(b) Plaintiff may examine defendant. If a plaintiff wishes to examine a defendant, after filing his bill, he may exhibit interrogatories to such defendant, which must be answered under oath within thirty days after service, unless otherwise ordered by the Court; and on his failure to answer them within such time, the Court may, by attachment, compel him to answer them, or may render a decree granting appropriate relief to the plaintiff against such defendant, or may extend the time for such answers to be made. But filing such interrogatories does not extend the time for answering the bill.'

The respondent judge by answer to the rule and in able brief takes the position that Section (b) of Rule 39, supra, clearly sustains the right of Mrs. Ingalls to propound interrogatories and the action of the respondent in requiring their answer. The basis of this conclusion is that Mrs. Ingalls, being the plaintiff in the original suit for divorce, was, by the rule, afforded the right to propound interrogatories to her adversary after the filing of her bill. Further, it is pointed out that the original bill for divorce vested the circuit court with jurisdiction over the children named in the bill during the period of their infancy, and over each of the parties to said bill for divorce so far as it was necessary to exercise such jurisdiction to protect and promote the welfare of said children, which jurisdiction is exclusive and continuous, citing Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911; Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Porter v. Porter, 216 Ala. 169, 112 So. 646, among others.

Without question, the court of equity, having once obtained jurisdiction over the minor children, relative to their care and custody, retains such jurisdiction during their infancy. Rosa v. Underwood, 235 Ala. 447 (1), 179 So. 530. But this, in our opinion, does not answer the question posed. It is to be borne in mind that there was at common law no right of one party litigant to propound interrogatories to his adversary and have answers thereto enforced--this, of course, being distinguished from the right to file a bill for discovery. The right is purely statutory, and being in derogation of the common law, statutes giving the right are to be strictly construed. Goodwater Warehouse Co. v. Street, ...