Quirk v. Quirk

• Decision Date: 10 July 1919
• Docket Number: D-66.
• Citation: 259 F. 597
• Court: U.S. District Court — Southern District of California
• Parties: QUIRK v. QUIRK et al.

259 F. 597

QUIRK v. QUIRK et al.

No. D-66.

United States District Court, S.D. California, Southern Division.

July 10, 1919

Burt F Lum, of San Francisco, Cal., for plaintiff.

Charles C. Montgomery, of Los Angeles, Cal., for defendants.

TRIPPET District Judge.

The plaintiff filed under equity rule 58 (198 F. xxxiv, 115 C.C.A. xxxiv), at the time of the filing of the bill, certain interrogatories addressed to the defendants, seeking to have the defendants discover to the plaintiff certain facts. The defendants, within proper time after the service of the interrogatories, objected to them, and each of them. These objections, briefly stated, are to the effect that the matter sought to be discovered by the interrogatories rests as much in the knowledge of the plaintiff as of the defendants, that they are inquisitorial in character, that they seek evidentiary matter, that they are intended to anticipate the defense, and that some of them are answered in the answer.

In determining these objections, it is necessary for the court to interpret that part of equity rule 58 which is as follows:

'The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause,' etc.

The rules of equity were reformed in 1912, for the purposes of the avoidance of delay and the attainment of justice. In order to understand the scope of this rule, it is necessary to consider the abuses which were sought to be corrected by amending the rules and the manner in which the amended rules sought to correct the abuses. Under the former rules a bill in equity was filled with probative facts and often matters of mere evidence. This was done by the plaintiff in order to develop the case as far as possible by the pleadings. The answer under the old rules was required to be verified, unless the bill waived such verification; but where the verification was not waived the answer often avoided disclosure by denials for want of information and belief and upon information and belief, so that little was gained toward ending a lawsuit by the pleadings. The new rules abolish technical forms verification of pleadings, excepting where the bill seeks special relief, and provide that the bill shall contain a short and simple statement of the ultimate facts, and the answer shall in short and simple terms set up the defense.

Under the old practice the evidence was all taken out of court by a commissioner, examiner, or master or by depositions, and then submitted to the court. In taking the evidence in this way as the officer could not pass on the admissibility thereof, there was no way to prevent the record from being filled with all sorts of irrelevant matter. Under the new practice the court hears the evidence, and, the court's time being valuable, it is necessary that the chaff be sifted out of the case, and that the parties find out before the trial what their real controversy is. Under the old practice interrogatories were part of the pleadings, and it was inappropriate that the system of gathering facts or evidence from the opposite party should be extensive. Under rule 58, the evidence taken is no part of the pleadings, but it is to be used upon the hearing of the case. Rule 58 was promulgated in view of the...