Ex parte Pollard
| Decision Date | 27 November 1936 |
| Docket Number | 7 Div. 418 |
| Citation | 233 Ala. 335,171 So. 628 |
| Parties | Ex parte POLLARD. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 14, 1937
Original petition of H.D. Pollard, as Receiver of Central of Georgia Railway Company, for mandamus to Lamar Field, as Judge of Circuit Court, Talladega County.
Writ granted conditionally.
W.H Sadler, Jr., of Birmingham, for petitioner.
Erle Pettus, Erle Pettus, Jr., and C.D. Ritter, all of Birmingham for respondent.
This is an original application for writ of mandamus, in the absence of other adequate remedy, seeking to review the rulings of the circuit court of Talladega county--Hon. Lamar Field presiding--and to compel the vacation of an order of that court requiring the defendant Pollard, as receiver of the Central of Georgia Railway Company, sued for the wrongful death of plaintiff's intestate, to disclose facts constituting the res gestae of such death, information which he has acquired through investigation from reports of his servants or agents, of which the defendant has no personal knowledge, and to which he could not testify as a witness. Mandamus is the appropriate remedy to review the rulings. Ex parte Tower Manufacturing Co. et al., 103 Ala. 415, 15 So 836; Ex parte State ex rel. St. Peters M. Baptist Church, 212 Ala. 365, 102 So. 793.
The circuit court in making the order seems to have proceeded on the idea that section 7767 of the Code (1923), which provides that "When the party to whom the interrogatories are addressed is a corporation, the answers thereto must be made by such officer, agent, or servant of the corporation as may be cognizant of the facts," was applicable to the defendant, who was engaged as receiver in operating the railroad at the time of the alleged death.
The right to propound interrogatories to the adverse party in civil actions at law is purely statutory, and while it may be that in the circumstances here presented the statute should require the answers to be made by an agent or servant cognizant of the facts, nevertheless it is clear that it does not. The answers, therefore, must be made by the defendant in person, and it is now well-settled that the statute contemplates that the facts elicited shall be material competent legal evidence, pertinent to the issues in the case; that the statute does not permit interrogatories which serve as a mere fishing expedition to elicit information not admissible as...
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