88 Ind. 305 | Ind. | 1882
— The only error assigned by appellant, the plaintiff below, upon the record of this cause, is this: “The •court erred in sustaining the appellees’ motion to strike out the appellant’s pleadings in this cause, and rendering judgment against the appellant for costs.”
On the 10th day of December, 1881, the appellant filed his' complaint against the appellees, in the St. Joseph Circuit Court. Afterwards, on the 2d day of Januaiy, Í882, the appellees, the defendants below, entered a special appearance and . moved the court, in writing, to strike out the appellant’s pleadings and dismiss the action. Afterwards, on January 4th, 1882, the appellant filed his affidavit in response to appellees’ motion, and by agreement the cause was continued. On March 22d, 1882, the appellees’ motion was sustained by the court, and to this decision the appellant excepted and filed his bill of exceptions, and judgment was rendered against him for the appellees’ costs.
In their written motion the appellees prayed that appellant’s pleadings be struck out and the cause dismissed, for the
In response to appellees’ motion, the appellant filed his. affidavit, wherein he stated, in substance, that, on the 24th day of December, 1881, in accordance with the notice given in-•the cause, he appeared at the office of William G. George,, Esq., and submitted to an examination as a party, under the provisions of the statute; that without any disrespect to the-court, or the. majesty of the law, and without endeavoring to conceal or withhold any information proper or legitimate for the defendants to have, under any possible defence to this action, but acting under the advice of his counsel, and believing questions seven and eight of such examination to be irrelevant to any possible issue that might arise in the case, he-declined to answer such questions; that in so doing he acted in the utmost good faith, as he would on the witness stand,, when an objection was made to the relevancy of a question there until passed upon by the court; and he said that if the-questions were held by the court to be relevant and proper to-be answered, he would answer the same before calling upon the defendants to answer his complaint in this action, and would hold himself ready to do so as soon as the court might-determine that they were proper and relevant questions.
We have not been furnished by appellees or their counsel with any brief or argument in support of the action or decision of the-court in striking out the appellant’s complaint and dismissing his action. The decision1 of the court, as it-seems to us, is erroneous and can not be upheld, under the-provisions of section 509, R. S. 1881', in force at the time of
But, even if this were not so,- we are of opinion that th'e action and decision of the court in this ease could not be sustained. In section 513, R. S. 1881, it is provided as follows r “Any party refusing to attend and testify, as above provided, may be punished as for a contempt; and his complaint, answer, or reply may be stricken out.”
It is not pretended in the case in hand that the appellant did not “ attend and testify.” Indeed, the appellant’s-examination, which was made a part of appellees’ written motion, conclusively shows that the appellant did appear and did testify. This examination also shows that, as to certain questions, under the advice of his counsel, “ without any disrespect to the court, but because there is nothing in the complaint upon which to base such questions, the plaintiff refused to answer.” The appellees’ motion showed upon its face, there-" fore, that appellant’s refusal to answer the appellees’ questions
But, even if the appellant had apparently erred in his refusal to answer the appellees’ questions, we think that by his affidavit, filed in response to the motion, he had purged himself of any seeming contempt, and that, upon his proffered willingness to answer the questions if the court should hold ■them to be relevant and proper, the appellees’ motion ought to have been promptly overruled. It seems to us, therefore, that in any view of the case at bar the court clearly erred in its ruling and decision. Trippe v. Carr, 80 Ind. 371.
The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule appellees’ motion, and for further proceedings not inconsistent with this opinion.