237 Mass. 508 | Mass. | 1921
This appeal presents a question of practice respecting answers to interrogatories. The plaintiff filed interrogatories under St. 1913, c. 815, section 3 whereof provides that ■ “If, within ten days after such notice [[of the filing thereof] . . . the party interrogated does not answer the interrogatories, the court shall, upon motion, order the party interrogated to answer
Neither order was in terms that all the interrogatories, fifty-one in number, should be answered categorically. The question of the sufficiency of the answers was never specifically passed upon. It is to be inferred that by ordering the defendant defaulted they were found to be insufficient. But the defendant was given no opportunity to correct its answers and make them adequate. In this there was error. The case is within the authority of Fels v. Raymond, 139 Mass. 98. The point there settled was that after answers to interrogatories are filed, there must be an adjudication that the answers are imperfect and the interrogated party be given an opportunity to amend them, before nonsuit or default can be entered. In the particulars here involved, the present statute is not materially different from that then in force. A default might have been entered on failure of the defendant to comply with the first order in the case at bar; but that was not done. The defendant was given further opportunity and filed some answers. These should have been adjudged insufficient and the defendant given a chance to amend them before the case was ripe for default. This course in substance and effect was followed in Downing v. Downing, 227 Mass. 7, where, after having answered two interrogatories, the trustee was ordered to answer the remaining interrogatories. This was equivalent to an adjudication that the answers made were insufficient and that the other interrogatories must be answered. Advantage was not taken of the opportunity thus afforded, because only one of the remaining interrogatories was then answered. Manifestly this was trifling
The entry of default was not the equivalent of a final judgment. Removal of default before final judgment is within the power of the court. Hurnanen v. Gardner Automobile Co. 225 Mass. 189. A default in an action at law is somewhat similar to the entry of a decree in equity that the bill be taken for confessed. Neither is a final disposition. Hutchins v. Nickerson, 212 Mass. 118.
The allowance of the plaintiff’s motion to amend her writ, although after the default of the defendant was before the entry of judgment and therefore within the power of the court. West v. Platt, 124 Mass. 353, 355. Strout v. United Shoe Machinery Co. 215 Mass. 116. Day v. Mills, 213 Mass. 585, 587. Neszery v. Beard, 226 Mass. 332. Noyes v. Noyes, 224 Mass. 125, 135.
Default remaned.
Case to stand for further hearing.