Hogaboom v. Price

• Decision Date: 11 June 1880
• Citation: 6 N.W. 43,53 Iowa 703
• Parties: HOGABOOM v. PRICE.
• Court: Iowa Supreme Court

53 Iowa 703

6 N.W. 43

HOGABOOM

v.PRICE.

Supreme Court of Iowa.

Filed June 11, 1880.

Appeal from Woodbury district court.

On the seventeenth day of October, 1877, the plaintiff commenced his action as the indorsee of three promissory notes, executed by the defendant to H. L. Hogaboom. On the seventh of November, 1877, the defendant answered, alleging that the notes were procured through fraud and misrepresentation, and that they were not assigned to plaintiff till long after they became due. The defendant attached to the answer interrogatories, asking the “name, age, residence and occupation of plaintiff, and if acquainted, and how long, with the parties to the suit; if he was the owner of the notes sued on, or had any interest in them; if he is owner, and has an interest in them, when he became owner and had interest, and how he knows the fact; and what consideration did he give; and when and how did he give any consideration for them, or any of them; and to state particlarly and fully, giving all his means of knowledge as to date; and to state fully how, when, where and by whom the said notes were assigned to him, and how he knows, and give his means of knowledge.” To these interrogatories the defendant attached his affidavit, as follows: “That I believe the subject of some of the interrogatories annexed to my answer in the above cause are within the personal knowiedge of the plaintiff, and that his answer thereto, if truly made, will sustain a part of the defence in said cause.”

At the March term, 1879, the defendant filed a motion to dismiss plaintiff's action, because the plaintiff had not answered the interrogatories attached to the defendant's answer. This motion the court overruled. At the same term the defendant filed a motion to compel and order plaintiff to answer the interrogatories. The court overruled this motion. On the same day the defendant filed a motion for judgment of dismissal, which the court overruled. At the same time the cause came on for trial, and defendant filed objections in writing to the trial of this cause and the introduction of plaintiff's testimony, because of the plaintiff's failure to answer the interrogatories. The court overruled the objection. Thereupon, the court, after hearing the evidence, rendered judgment against the defendant for $203.90. The defendant appeals.S. T. Davis, for appellant.

M. B. Davis, for appellec.

DAY, J.

1. There was no error in overruling the first motion to dismiss the plaintiff's action. Section 2700 of the Code provides that the court may compel answers to interrogatories by process of contempt, and may, on the failure of the party to answer them, after reasonable time allowed therefor, dismiss the petition. Section 2695 of the Code provides that the interrogatories shall be...