Merchants' Grocery Co. v. Merchants' Trust & Banking Co.

80 So. 494 | Miss. | 1918

Smith, C. J.,

delivered the opinion of the court.

This is 'an attachment in chancery in which there was a decree in the court below for the defendant. The appellant was the complainant and the appellee was the defendant in the court below, and they will be hereinafter so designated. Counsel for the complainant assigns several reasons for a reversal of the decree appealed from, all of which are without merit, and only one of which will be specially noticed here.

When the cause came on for trial, the complainant moved the court to strike the answer of the defendant from the files, and to render a decree pro confesso against it under section 1938, Code of 1906, section 1598, Hemingway’s Code, setting forth that interrogatories addressed to the defendant, a nonresident corporation, and filed in the cause, had not been answered, although a reasonable time so to do had elapsed. To the copy of the interrogatories referred to was attached a certificate in the following words:

“I hereby certify that on this day I delivered to Mr. W. F. Cook, of the firm of Stevens & Cook, solicitors for the defendant, a true, correct and complete copy of the foregoing interrogatories numbered from 1 to 16 inclusive.

“This the 25th day of June 1917.

“[Signed] Emma Broach,

“Stenographer for Counsel for Complainant.”

When the motion was being argued for the defendant by its counsel, the W. F. Cook referred to in the certificate of the complainant’s counsel’s stenographer attached to the interrogatories, stated:

“That he received a copy of the interrogatories, which were handed him by the stenographer for counsel for complainant; that at said time he thought that same were being given him for the purpose of taking depositions under the usual way; and that he expected a commission to issue in due course for the taking of said depositions; and that therefore he paid no more attention to' it” — which statement was placed on the record by counsel for complainant.

The motion was overruled.

The severe penalty provided by section 1938, Code of 1906, section 1598, Hemingway’s Code, should not be inflicted, unless the requirements of the statute have been strictly complied with the party invoking it and the alleged default of the party against whom it is invoked clearly appears. McLean v. Letchford, 60 Miss. 169; Givens v. Southern Express Co., 106 Miss. 834, 64 So. 737; Hibernia Bank & Trust Co. v. Beech, 117 Miss. 668, 78 So. 609.

The requirement of section 3941, Code of 1906, section 2948, Hemingway’s Code, that “all notice provided for by law appertaining to actions, suits, or proceedings of any kind in any court shall he served and returned hy the sheriff or any constable of the county, or the marshal of any city, town, or village therein in which such notices are to be served,” applies, of course, to the notice required by the statute here in question to be given to the party against whom it is invoked or to his attorney, so that the notice here given the defendant’s attorney by the complainant’s counsel’s stenographer was not a compliance therewith and of itself alone imposed no duty upon the defendant to answer the interrogatories.

Formal service of the notice may be waived; but there is no pretense that it was expressly waived here, and we cannot hold that there was a waiver by implication, for at least one fact which must appear in order to justify such a holding is absent, that is, that when the copy of the interrogatories was given to the defendant’s attorney he understood for what purpose they were intended, and that no further notice thereof would be given.

Affirmed.