Winneshiek Cnty. State Bank v. Dist. Court of Allamakee Cnty., No. 37032.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTEVENS
Citation212 N.W. 391,203 Iowa 1277
Decision Date15 February 1927
Docket NumberNo. 37032.

203 Iowa 1277
212 N.W. 391


No. 37032.

Supreme Court of Iowa.

Feb. 15, 1927.

Certiorari from District Court, Allamakee County; James D. Cooney, Judge.

Certiorari to review certain orders of the district court. The opinion states the case. Writ dismissed.

Morling, J., Evans, C. J., and De Graff, J., dissenting.

[212 N.W. 391]

E. R. Acres, of Decorah, for plaintiff.

William S. Hart, of Waukon, for defendants.


This is an original certiorari proceeding in this court to review certain rulings and orders of the district court of Allamakee county, requiring and directing the plaintiff herein, who is also the plaintiff in the action below, to answer certain interrogatories attached to the answer of the defendants therein. The plaintiff is a banking corporation and has pending in the district court of Allamakee county an action against Sophia and Amos W. Nagel upon two promissory notes, for $4,000 and $1,000, respectively, executed to it December 1, 1921. The answer is lengthy and with much detail and elaboration sets up fraud in the inception of the notes, together with a want of consideration. Attached thereto is a series of ten interrogatories which the plaintiff is asked to answer. The plaintiff, however, filed exceptions and objections to each of the said interrogatories, setting up that the testimony sought is immaterial, incompetent, and irrelevant. The petition filed in this court also alleges that the questions call for incompetent, immaterial, and irrelevant matter, and that:

“If plaintiff answers said interrogatories, he will suffer an irreparable injury, will be greatly prejudiced and hampered in the prosecution of his just cause against the said defendants Sophia Nagel and Amos W. Nagel, on said note, and his right of action will be seriously hampered and impaired.”

Neither the exceptions nor objections to the interrogatories nor the allegations of the petition proceed upon the theory that any of the matters called for are privileged or that

[212 N.W. 392]

they will necessarily require disclosures that will work serious or irreparable injury to the plaintiff. This proceeding was instituted prior to the date fixed by the court below for the filing of answers to the interrogatories, hence no judgment has been entered.

The right of the plaintiff, which is denied by the defendants, to have the rulings complained of reviewed in this proceeding is the only matter requiring decision.

[1] The right to file interrogatories at the time of filing a pleading is purely statutory, and the procedure to be followed is controlled thereby. The statute provides that either party may annex to his petition, answer, or reply written interrogatories to any one or more of his adversaries, “concerning any of the material facts in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and the party answering.” The party answering need not confine his answers to responding merely to the interrogatories, but may state any new matter concerning the action, which he may also read as a deposition. The interrogatory must be answered at the time the pleading to which they are attached is answered or replied to, unless exceptions are filed thereto, in which event the court must determine the propriety of the interrogatories and which, if any, of them shall be answered, and fix a time therefor. The party answering shall distinguish clearly between what is stated upon his personal knowledge and what from information or belief merely. The answers must be verified by the affidavit of the party making them to the effect that the statements therein made are of his own personal knowledge, and that they are true, or that they are made from information of others, and that he believes the same to be true. When the party interrogated is a corporation, the answers and verification thereof shall be made by the officer or agent of such corporation having knowledge thereof. Trial of an action by ordinary proceedings shall not be postponed because of the failure to answer interrogatories, if the party interrogated is present at the time of the trial so that he may be orally examined, nor shall such trial be postponed if the party whose duty it is to answer the interrogatories is absent, unless an affidavit reciting the facts which the interrogator believes will be proved by the answers and that such interrogatories have not been filed for the purpose of delay is filed. If, however, it be admitted by the party interrogated that the facts stated in the affidavit are true, the trial shall not be postponed. Sections 11185-11190, Code 1924. The further material provisions of the statute are as follows:

“Section 11191. Where a party filing interrogatories shall also file an affidavit that he verily believes the subject of the interrogatories, or any of them, is in the personal knowledge of the opposite party, and that his answers thereto, if truly made from such knowledge, will sustain the claim or defense, or any part thereof, and the opposite party shall fail to answer the same within the time allowed therefor, or by the court extended, the claim or defense, or the part thereof, according to such affidavit, shall be deemed to be sustained, and judgment given accordingly.

Sec. 11192. 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, or strike the pleading of the party so failing from the files.”

No affidavit, as allowed by section 11191, was filed by the defendants Sophia and Amos W. Nagel.

[2] Did the court in his rulings upon the exceptions and objections to the interrogatories, and in ordering that same be answered, exceed “his proper jurisdiction,” or otherwise act illegally? If so, the same may be reviewed in this proceeding, but not otherwise. The foregoing provisions of the statute have sometimes been referred to as substituting the proceeding therein authorized for the common-law bill of discovery. Beem v. Farrell, 135 Iowa, 670, 113 N. W. 509. This decision apparently proceeded upon an erroneous interpretation of section 3604 of the Code of 1897. The equitable action to obtain a bill of discovery was long since abrogated by statute in this state except as to certain definitely prescribed matters. The decision in the Beem Case also overlooks numerous prior decisions of this court.

[3] Commencing with Lane v. Krekle, 22 Iowa, 399, it has always been held that the statute creates a rule of evidence together with a summary method by which one party may obtain the testimony of his adversary. Perry v. Heighton, 26 Iowa, 451;Greene, Rowley & Co. v. Woods, 34 Iowa, 573;McFarland v. City of Muscatine, 98 Iowa, 199, 67 N. W. 233;School District v. School District, 148 Iowa, 154, 125 N. W. 184. The answers to the interrogatories, when filed, may be read as a deposition by either party. Such is the plain provision of section 11185 of the Code. The necessary corollary to the rule stated is the further rule that the interrogatories must relate to matters relevant and material to some issue in the case and competent to be introduced as evidence upon the trial. Greene, Rowley & Co. v. Woods, supra; McFarland v. City of Muscatine, supra; Free v. Telegraph Co., 135 Iowa, 69, 110 N. W. 143;City of Des Moines v. Polk County, 107 Iowa, 525, 78 N. W. 249;Red P. Cattle Club v. Red P. Cattle Club, 108 Iowa, 105, 78 N. W. 803;Lee v. Blumer, 189 Iowa, 1145, 179 N. W. 625.

That the statute was designed to provide merely a rule of evidence and a summary proceeding to obtain the same is further emphasized

[212 N.W. 393]

and illustrated by the application made thereof in numerous decisions of this court, in fact, in all of them touching the subject. Perry v. Heighton, supra; Hogaboom v. Price, 53 Iowa, 703, 6 N. W. 43;Beacham et al. v. Gurney, 91 Iowa, 621, 60 N. W. 187;Sully v. Wilson, 44 Iowa, 394;Steel Co. v. Van Buren County, 126 Iowa, 606, 102 N. W. 536; Free v. Telegraph Co., supra; School District v. School District, 148 Iowa, 155, 125 N. W. 184;Baldwin v. Moser, 155 Iowa, 410, 136 N. W. 195;Fahey v. A. O. U. W., 187 Iowa, 825, 174 N. W. 650.

The rule does not appear to have ever been permitted to operate oppressively or without due regard to the rights of litigants. Some discretion must, of course, be allowed to the court below in determining the propriety of the interrogatories, and perhaps some liberality indulged in favor thereof, but the materiality of the evidence sought, its relevancy to the issues to which the interrogatories relate, and the admissibility of the answers in evidence are necessarily the determining factors in ruling upon exceptions or objections thereto.

The court was bound to recognize and follow the statute which required him to determine the propriety of the interrogatories and whether the exceptions and objections thereto should be sustained or overruled. Surely, its jurisdiction was not exceeded when plaintiff's objections to the interrogatories were overruled. The most that could be urged against such ruling is that it was erroneous. Having jurisdiction to overrule the objections, it is difficult to conceive how its order requiring and directing the plaintiff to answer the interrogatories, the propriety of which had already been determined, could be illegal in such sense as to permit a review thereof in this proceeding.

This is the first time review of a similar ruling has been sought on certiorari. Questions involving the statute, often considered and passed upon by this court, have always arisen upon appeal. Rulings upon the admissibility of evidence during the progress of a trial are mere incidents thereof and reviewable neither upon direct appeal nor by certiorari. Error therein inheres in the judgment. Richards v. Burden, 31 Iowa, 305;State v....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT