Rosenau v. Powell
| Decision Date | 18 May 1911 |
| Parties | ROSENAU v. POWELL. |
| Court | Alabama Supreme Court |
Appeal from Tuscaloosa County Court; H. B. Foster, Judge.
Bill by M. E. Powell against D. L. Rosenau for an accounting and to declare a deed null and void. From a decree for complainant respondent appeals. Affirmed.
Jones & Penick, for appellant.
P. B Traweek and E. L. Clarkson, for appellee.
In her original bill complainant (appellee) waived answer under oath. The bill was fully and appropriately answered. Afterwards complainant lodged with the register interrogatories requiring sworn answer by the defendant. The register failed to mark the interrogatories filed, nor does he seem to have made any formal order upon the minute book of the court fixing the time within which they should be answered. However, he prepared duplicate notices to the defendant, reciting the fact that complainant had filed interrogatories, and notifying defendant that he had 65 days from date in which to answer them. On the same day one copy of the notice, along with a copy of the interrogatories, was served on the defendant by the sheriff of Tuscaloosa county the other, with the sheriff's indorsement of service thereon, being returned into court where it remains upon the file. On a day 75 days later the presiding judge passed a decree pro confesso in default of an answer to the interrogatories. Thereafter the court allowed the cause to proceed to a decree ascertaining the rights of the parties on the theory that the defendant was in contempt in failing to answer the interrogatories as shown by the decree. The question of controlling importance is whether the decree pro confesso was properly allowed.
The remedy given to complainant in chancery by section 3135 of the Code of 1907, which permits the complainant to exhibit interrogatories to the defendant and call upon him to answer the same, is cumulative to the right of discovery which complainants have always had. It implies the complainant's right to exhibit interrogatories to his adversary, although answer under oath to the averments of the bill may have been waived when the bill was filed. The further provision is that, on the defendant's failure to answer "within such time as may be prescribed by the register, the court may, by attachment, compel him to answer, or may render a decree granting relief to the complainant, or may extend the time for such answers to be made." Section 3136 provides that: "Upon the filing of interrogatories * * * the register must issue a copy thereof, which, together with a copy of the order of the register fixing the time for answering them, must be served upon the party to whom the interrogatories are propounded, or his solicitor, not less than sixty days before the expiration of such time." It is objected to the validity of the decree pro confesso that it was without authority of law for the following reasons: (1) The interrogatories were not filed; (2) the register made no order; (3) the statute does not authorize a decree pro confesso.
1. The proceeding is statutory, and its validity depends upon an observance of the statutory requirements. But in ascertaining the meaning of the statute we are not required to stick too closely to the bark of its language. The statute contemplates a filing of interrogatories by the complainant. The register's indorsement of the fact of filing is appropriate, of course, and should not be omitted. "Accordingly we find that filing a paper is now understood to consist in placing it in the proper official custody, on the part of the party charged with the duty of filing the paper, and the making of appropriate indorsement by the officer." But, Phillips v. Beene, 38 Ala. 248; Ex parte State ex rel. Stow, 51 Ala. 69.
2. Much the same considerations dispose of the second objection. The register did make a formal order fixing the time within which the interrogatories were to be answered. And perhaps he transferred the order to the permanent records of the court. At any rate, the order was made in writing and a copy duly served upon the defendant. This was a compliance with the letter of the statute.
3. The statute provides that, in default of an answer, the court may render a decree granting relief to the complainant. Conceding that the court may in ordinary cases grant complete relief appellant seems to say that a decree pro confesso is not complete relief, and is not therefore authorized by the statute. Prior to 1907 the articles of the Codes dealing with the subject of the examination of parties by interrogatories were limited to a definition of the procedure in cases at law. In the Code of 1907, notwithstanding the process in courts of equity for the identical purpose was elsewhere regulated, sections 4049-4057 undertake, by interpolating "suits in equity" and "decrees and decrees pro confesso," to...
To continue reading
Request your trial
-
Dewberry v. Bank of Standing Rock
... ... discovery sought by the bill. Ex parte Kelly (Kelly v ... Carmichael), 221 Ala. 339, 128 So. 443; Rosenau v ... Powell, 173 Ala. 123, 55 So. 789; Goodall-Brown & ... Co. et al. v. Ray, 168 Ala. 350, 53 So. 137. The final ... decree was rendered ... ...
-
Ex parte Kelly
...1928, are cumulative to the right of discovery in courts of equity, though answer under oath has been waived in the bill. Rosenau v. Powell, 173 Ala. 123, 55 So. 789. statute gave complainant the right to testimony of respondents, though interrogatories were not included in her original bil......
-
Gordon v. Central Park Little Boys League
...under Equity Rule 39(a), Title 7, Appendix, Code 1940, which is cited by appellants to support the error here assigned. Rosenau v. Powell, 173 Ala. 123, 55 So. 789, also cited by appellants, was an appeal from a final decree. No final decree has been rendered in the case at bar. The only st......
-
Smith-Howard Gin Co. v. Ogletree
... ... Badham et al. v. Johnston et al., 239 Ala. 48, 50, ... 193 So. 420; Hall v. Hall, 241 Ala. 397, 406, 2 ... So.2d 908; Barnes v. Powell, 241 Ala. 409, 410, 3 ... So.2d 80; Dean v. Lusk, 241 Ala. 519, 525, 3 So.2d ... 310; First Nat. Bank of Birmingham v. Bonner, 243 ... Ala ... authorized by the facts averred, although he may be mistaken ... in the special relief prayed. Rosenau v. Powell, 173 ... Ala. 123, 55 So. 789. * * *' ... The ... origin, history and analysis of the prevailing rule in ... Alabama prior to ... ...