34 Iowa 573 | Iowa | 1872
The grounds of the motion for striking out the first interrogatory, are:
Fir si. It does not concern any material matters in issue.
Second. The defendant does not state that he believes there were other considerations and agreements, nor that in plaintiffs’ original petition these were truly stated.
The interrogatory is in these words: “ Whether any other consideration or agreements were made in connection with the said contracts, and whether said conditions are truly stated in plaintiffs’ original petition.”
We have seen that the plaintiffs claim in their petition that, at the time of the making of the agreements sued on, they agreed with defendant in consideration thereof to build their road to Grinnell, and to issue certificates of shares in the capital stock of the company, to defendant on payment by him according to the terms and conditions of his agreement. Now this is all denied in the answer, and it is averred that the agreements were merely gifts to the company. The question submitted in the first interrogatory is material to this issue. Plaintiffs averred the consideration for making the promises sued on. These averments were denied in the answer and the averment made that they were made and accepted as a gift. Upon this issue the law gives the defendant the right to take the testimony of the plaintiffs in this manner. Rev., § 2985. This method of procuring the testimony' of the opposite party the statute provides, in addition to the other ordinary methods, and an interrogatory tending to elicit evidence pertinent and material to the issue ought not to be stricken out on the grounds assigned in the motion in this case.
The second, third and fifth interrogatories were attacked on the ground of immateriality, and the motion asks to have all the interrogatories stricken out, "because defendant does not state in his* affidavit that he believes the plaintiffs have personal knowledge of the matters and things stated in his affidavit, as to be proved by them.”
The defendant, in his affidavit, does state that he verily believes the subject of the interrogatories,or some of them, are in the personal knowledge of the plaintiffs, etc., which is in compliance with the statute. Rev., § 2991.
On the hearing of the motion the plaintiffs submitted, in support of their motion, the affidavit of Quincy A. Gilmore, stating facts tending to show that plaintiffs had no personal knowledge of the subject of the interrogatories. Whether such an affidavit may be admitted in any case, in support of a motion of this character, we need not determine; but in this case it was clearly impertinent and inadmissible, because it did not tend to support any of the grounds of the motion.
It is to be presumed that plaintiffs had stated in their motion all the grounds that existed for striking out the interrogatories, and having stated no objection which this affidavit would tend to support, it was improper to receive and consider it in connection with the motion, against the objection of deféndant.
The other errors assigned are based upon the principal one of striking out the interrogatories to the answer, and as that action of the court was erroneous we need not consider the others based thereon.
Reversed.