National Fertilizer Co. v. Holland

• Decision Date: 19 June 1895
• Citation: 18 So. 170,107 Ala. 412
• Parties: NATIONAL FERTILIZER CO. v. HOLLAND ET AL.
• Court: Alabama Supreme Court

18 So. 170

107 Ala. 412

NATIONAL FERTILIZER CO. v. HOLLAND ET AL.

Supreme Court of Alabama

June 19, 1895

Appeal from circuit court, Geneva county; John R. Tyson, Judge.

Action by the National Fertilizer Company against E. E. Holland and others on a promissory note. From a judgment for defendants plaintiff appeals. Affirmed.

After the case was called for trial, and after plaintiff and defendants had announced "Ready," defendants moved the court to suppress the deposition of one J. B. Reid, which had been taken by the plaintiff in the cause. The interrogatories upon which said deposition was founded were propounded under section 2802 et seq. of the Code of 1886 and the affidavit set forth the ground named in subdivision 5 of section 2801 for taking such deposition. The grounds upon which the motion to suppress said deposition was based were (1) Because the defendants had no notice of interrogatories being filed to J. B. Reid by the plaintiff. (2) Because the defendants resided in Geneva county, and the interrogatories were filed with the clerk of the circuit court of Geneva county, and the defendants were not served with notice of the filing of said interrogatories, had no knowledge of such filing, and therefore had no opportunity to file cross interrogatories to said J. B. Reid. The facts set forth as grounds for said motion were admitted to be true by plaintiff's counsel, but he replied that the commissioner named to take such deposition gave defendants' attorney notice of the time and place of taking the deposition on the interrogatories filed by plaintiff to the witness Reid. This statement was admitted to be true by defendants. Thereupon the court sustained the motion of defendants, and suppressed the deposition of the witness J. B. Reid, and to this ruling of the court the plaintiff duly excepted. Plaintiff propounded interrogatories to defendants under Code 1886, § 2816 et seq. In these interrogatories, plaintiff asked defendants to attach to their answer the book kept by the Mt Pleasant Alliance, containing a record of all the proceedings during the years 1889 and 1890 of said alliance. After these interrogatories and the answers thereto were read in evidence, plaintiff moved the court to attach defendants, and cause them to answer fully in open court. The court overruled this motion, and plaintiff duly excepted. Plaintiff then moved the court to enter judgment by default against defendants, which motion the court overruled, and plaintiff duly excepted. Plaintiff then moved the court to continue the cause until full answers to said interrogatories were made by defendants. The court refused this motion, also, and plaintiff duly excepted. The ground upon which each of the foregoing motions was made was that the answers filed by defendants to the interrogatories propounded to them by plaintiff were not full, but evasive, in this: that defendants failed to attach to said answers the book or books containing the record of the proceedings had by Mt. Pleasant Alliance during the years 1889 and 1890. The bill of exceptions recites: "Counsel for the plaintiff stated to the court that he expected to show by said books that said alliance, of which all the defendants were members, introduced and passed resolutions authorizing the purchase of guano from the plaintiff, and that the note sued on in this action be given therefor, and that said books showed the date, amount, and names of persons signing it. Counsel for defendants, in reply, stated that such books contained no such entries as alleged by plaintiff's counsel; that there were other entries that were of a private character, and plaintiff had demanded the entire books in the interrogatories filed, and the defendants refused to surrender the entire books." All of defendants swore that there was nothing in said books showing that there were such facts as stated by plaintiff's counsel. The bill of exceptions then states: "In consequence of the adverse rulings of the court, in suppressing the deposition of J. B. Reid, and in refusing to grant the several motions heretofore noted, the plaintiff was unable to proceed further, and was compelled to take a nonsuit." The appeal is prosecuted by plaintiff, who assigns as error the ruling of the court in suppressing the deposition of the witness J. B. Reid, and also the other rulings of the trial court, which are assigned as follows: "The court below erred in its action on the several motions made by appellant. It should have granted one of the three motions."

M. E. Milligan, for appellant.

COLEMAN J.

The mere announcement of the parties that they are ready for trial is not such an entering on...