26 Iowa 451 | Iowa | 1868
The claim by the defendants, that the court erred, is based on Revision, section 2991: “ Where a party filing interrogatories shall also file an affidavit that he verily believes the subject of the interrogatories, or any of them, is within 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 thereof, and the opposite party shall fail to answer therein within the time allowed therefor, or by the court extended, the claim or defense, or any part thereof, according to' such affidavit, shall be deemed to be sustained, and judgment given accordingly.” Without deciding upon this claim of the defendants, if it rested alone upon this section, we remark, that this section must be construed in connection with other sections of the Code bearing upon the same subject. Immediately following the section above quoted is section 2992: “ The court may compel answers to interrogatories by process of contempt, and may, on the failure of the party to answer them, after réasonable time allowed therefor, dismiss the petition, or quash the answer of the party so failing.”
Construing these sections, and those relating to interrogatories, together, we hold, that section 2991 establishes a rule of evidence, and that the interrogatories unanswered, and the affidavit, constitute proof of the claim or defense, and on the trial, judgment shall be given accordingly. But it does not entitle the party to a judgment without trial,
The argument against this view, based upon the idea that great hardship must result from it, since the.party is brought into court, and put to the trouble and expense of counsel, and the preparing interrogatories and affidavit, and then may be dismissed and liable to be again sued, is fully answered by the thought, that if he had subpoenaed his witnesses and had them in court ready to prove, and had proved on a trial, the same facts, the right of the plaintiff to dismiss at any time before final submission is both unquestioned and unquestionable. The hardship is no greater in the one case than the other, and no argument can be derived therefrom in support of the appellant’s case. The plaintiff had a right to dismiss his action and the court .did not err.
Affirmed.