Smithers v. Metropolitan Discount Co.

• Decision Date: 07 March 1921
• Docket Number: 21417
• Citation: 87 So. 284,124 Miss. 833
• Court: Mississippi Supreme Court
• Parties: SMITHERS v. METROPOLITAN DISCOUNT CO

87 So. 284

124 Miss. 833

SMITHERS v. METROPOLITAN DISCOUNT CO

No. 21417

Supreme Court of Mississippi

March 7, 1921

DISCOVERY. Failure to fully answer interrogatories not ground for dismissal.

Where interrogatories were propounded to a nonresident party pursuant to Code 1906, section 1938 (Hemingway's Code section 1598), which were not fully answered, this does not justify the court in imposing the extreme penalty of dismissing the suit where it did not appear that there was an intentional evasion, and when there has been a substantial compliance with the provisions of the statute, if the party propounding the interrogatories is not satisfied with the disclosures made, exceptions to the answers may be filed and, if the court is then of the opinion that the interrogatories have not been fully answered and that further answers are necessary or proper, it may require such additional answers to be made.

HON. E D. DINKINS, Judge.

APPEAL from circuit court of Tallahatchie county, HON. E. D. DINKINS, Judge.

Suit by the Metropolitan Discount Company against J. B. Smithers. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Hays, Stingly & Whitten, for appellant.

Of course section 1938 of the Code of 1906, is highly penal. The legislature so meant it. It can be only strictly construed against him who invites it. The first thing to be determined, therefore, is: Has the plaintiff answered the interrogatories propounded to it in so far as competent and material evidence was sought?

We submit in the first place, the plaintiff hasn't answered at all. It is true plaintiff files some answers made by one Frank Coffman, a self-styled witness for the defendant. There is a very manifest difference in what might be the answer of Frank Coffman, a witness for the defendant, and Frank Coffman, even secretary or president or general manager of the plaintiff's corporation.

If we are correct in this contention, the case ends here. Even the fact that the party interrogated was mistaken as to by whom the answers should be made would not avail the appellee. Harsh or otherwise, our legislature, and within its own peculiar province, has settled that and no doubt with due regard to the manifest fact that in no case will answering the questions propounded injure the party questioned unless these answers, as competent testimony, support the case of the opposing party. If competent, there was still the remedy at the trial which would keep it from the ear of the jury.

If we are in error in the foregoing, another question then arises, and that is: Granting that Mr. Coffman did authoritatively answer for the plaintiff, so that the plaintiff filed the answers, has the plaintiff answered so as to avoid the penalty of the statute? These interrogatories were patterned after those used in the Cedar Rapids National Bank v. Berry & Murry, No. 14,486, 51 So. 601, and Cedar Rapids, etc., v. Rhodes, No. 14,869, 53 So. 425. The interrogatories are in effect, the same. The court necessarily held that they were material and proper to be answered, in that the judgment of the lower court dismissing the suits for failure to answer, was affirmed.

The plaintiff, taking the answers as its answer, refused outright to answer several of the material interrogatories. For instance, interrogatory No. 3 calls for copies of plaintiff's record of its dealings with the party from whom it bought the alleged acceptance. See page 9 of the record. The witness says this question is incompetent. These very dealings would show knowledge on plaintiff's part of the character of business done by the party whose paper it was buying. This record would conclusively show whether or not plaintiff was an innocent purchaser for value before due date, and whether they had sufficient knowledge to take away from them the beneficent principle of law that an innocent purchaser shall not suffer. Yet the plaintiff refuses to answer. Shall it be allowed to escape the statute's penalty; not that, but more strongly, shall it be allowed to take one man's money to which it is not entitled by answering some of the questions it thinks are not injurious and refusing to answer others which might injure? The plaintiff in this case hasn't answered the interrogatories until it has answered them all. Answering a part will not avail.

Ward & Ward, for appellee.

In their brief, counsel for appellant say that plaintiff has not answered the interrogatories at all but that one Frank Coffman has answered, as self styled witness for plaintiff. We call the court's attention to the fact that plaintiff is a corporation and corporations can only answer by ail officer of the corporation or some person employed by it who knows the facts. In answer to interrogatory No. 1, it is shown that Frank Coffman, the witness testifying, is the secretary and treasurer of plaintiff company and a director owning a majority of its capital stock. We think this fully answers that objection.

Should judgment by default have been rendered because the interrogatories were not fully answered in every respect? It is urged that interrogatories, 3, 4, 9, 11 and 16 have not been answered. A reading of the entire deposition will disclose that a substantial compliance with the requirements is made. We think the objections to interrogatory No. 3 is right.

We think the interrogatory covered too much ground and called for irrelevant matters. Certainly it would shed no light on this case to have copies of all records of all transactions with the National Novelty Import Company, copied running over a number of years and involving twenty-five per cent. of their entire business. We think no court would think this a reasonable requirement. But we insist that when all the answers are read that all the information that plaintiff had was given.

It is stated that the interrogatories in this case are patterned after those in the case of Cedar Rapids Nat. Bank v. Berry, 51 So. --, and Same v. Rhodes, 53 So. 435, but the court will observe the very different answers made in those cases to the ones in this case. In those cases, the plaintiff refused, rather arrogantly, to answer a number of questions showing a willful disregard of the rights of the defendants.

The last expression of this court on this question is the case of Higgins Lumber & Export Co. v. Price, 120 Miss. 123. We think the answers here show no intentional evasions.

OPINION

W. H. COOK, J.

Appellee, Metropolitan Discount Company, filed its suit against J. B. Smithers, defendant in the court below, upon certain trade acceptances, and from a judgment for appellee for the amount sued for, this appeal was prosecuted.

The declaration alleges that these bills of exchange were purchased by appellee from the National Novelty Import Company for a valuable consideration, in the due and regular course of business, before maturity, and without notice of any defense thereto. Appellant filed the plea of general issue, and gave notice thereunder that he would offer evidence to show that these bills of exchange were given for the purchase price of an assortment of jewelry which was to be shipped to defendant by the National Novelty Import Company; that he gave an agent an order for the jewelry, but countermanded the order on the same day the order was given for the reason that he was informed that the National Novelty Import Company was a fake jewelry concern and that the assortment of jewelry was not desirable; that the countermand was received by the National Novelty Import Company long before the jewelry was shipped; that, notwithstanding the countermand of the order, the jewelry assortment for which the said bills of exchange were given and accepted was...