135 Iowa 69 | Iowa | 1907
On the day following the defendant filed an amendment to its answer, specifically admitting: That during the month of November, 1902, it was operating a line and engaged in the transmission of telegraph messages between Huntington, Ind., and Manning, Iowa; that on November 3, 1903, the following message was delivered to it for transmission, with fee therefor, by the signer: “ Huntington, Indiana, Nov. 3d, 1902. To Martin H. Free, Manning, Iowa: Mother near death’s door at Huntington. Am with her. [Signed] Ida Whittaker.” Also that another message announcing the death of plaintiff’s mother, was transmitted to him on the 6th of the same month, during which no other telegrams were received by it to be forwarded to plaintiff. The original answer had admitted that the telegram such as set out, addressed to Martin H. Freeman, had been delivered on the 6th of November, 1902. Because of defendant’s failure to comply with the order requiring it to answer the interrogatories, the court then ordered that all pleadings filed by it be stricken from the files and that default be entered against it.
Appellee relies upon sections 3610 and 3611 of the Code as authorizing this ruling. Section 3610 provides that “ 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
The section first quoted contemplates the entry of an order after the filing of the affidavit. Possibly it is not necessary that this accompany the interrogatories when these are filed, and it may be within the court’s discretion to allow it be filed, even subsequent to the entry of an order requiring answers. But, before the drastic remedy provided for may be taken advantage of, an opportunity to answer must be afforded by fixing a time within which such answer must be filed, either by entering an original order or by extending the time previously fixed. Certainly the section cannot be applied where the time for answering has elapsed without an order extending the time. Under this section the claim or defense is taken as true, and therefore the necessity of proof is obviated; while under that following, even though the delinquent be adjudged in default, the adverse party must establish his claim. The ruling of the trial court was in harmony with the views expressed; for in striking the pleadings and entering the default, without more, the portion of the motion asking that the cause of action be sustained was necessarily denied. Ought the court, under the circumstances disclosed, to have entered default against defendant ? It is not necessary that the affidavit mentioned in section 3610 should have been filed in order that the relief provided in section 3611 may be invoked. All courts have authority to enforce their proper orders, and the last-mentioned section prescribes the manner in which any order to answer interrogatories, whether supported by affidavit or not, may be enforced.
The motion here contemplated is based on the insufficiency of the allegation of the petition, and not the lack of evidence to sustain it, as argued by appellant. Kirk v. Litterst, 71 Iowa, 71. But where the presentation or notice of the claim depends on contract, and the facts constituting the cause of action have not and could not, in the exercise of reasonable diligence, have been ascertained in time to have made demand or to have given notice, the courts quite generally hold that the action will not be barred. Herren v. Telegraph Co., 90 Iowa, 129. The statute contains no exceptions, however ; and, as it is not essential in passing on the ruling of the court to determine whether delay in ascertaining the cause