Hogaboom v. Price

53 Iowa 703 | Iowa | 1880

Day, J7

i. practice : Failure1 f<7 answer interrogatories. -I. There was no error in overruling the first motion to dismiss the plaintiff’s action. Section 2700 of the Code provides that 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. Section 2695 of the Code provides that the interrogatories shall be answered at the same time that the pleading to which they are annexed is answered. The answer in this case required no reply, and the court should have been asked to fix a time within which the interrogatories should be answered, before moving to dismiss tbe action for want of answers to tbe interrogatories:

2 _____. ■ II. Wo are of opinion, also, that the court did not err in refusing to make an order requiring the interrogatories to be answered. Many of the interrogatories are frivolous and unimportant. It is not now claimed by the appellant that any of them are material except as to the time when the plaintiff obtained title to the notes by indorsement. - If the defendant had particularized the interrogatory respecting this matter, and had asked an order that it be answered, it may be that he would have been entitled to such order. But he asked an order that the interrogatories generally be answered. He was not entitled to such order, and there was no error in refusing it. It follows that there was no error in overruling the second motion to dismiss the action and the objection to the trial of the cause.'

s “■1 ' III. If the defendant had stated in his affidavit what particular portion of his defense would be sustained by the answers to the interrogatories he would have been entitled to have had that particular fact deemed admitted by the failure to answer. But he did not do this. Besides, he did not ask that any portion of his defense be treated as admitted. See Sully v. Wilson, 44 Iowa, 394.

IY. The defendant filed a motion to suppress the deposition of J. E. Ilallett, upon the ground that it was taken from the office of the clerk, after it was filed, without the consent of the partios. The affidavits filed in connection with this motion show that the deposition was handed to the plaintiff’s attorney by the clerk, during the term at which the cause was tried. This is not prohibited by the statute. Code, § 3139.

We discover no error in the record.

Aeeibmed.