Robinson v. Craig

16 Ala. 50 | Ala. | 1849

DARGAN, J.

I have sought in vain to find a precedent where a bill of discovery has been brought in aid of an action at law, to ¡recover damages for a tort done to the person of the plaintiff. In the case of Glynn v. Houston, 1 Keene, 329, it is said, both by the copnsel in argument and the court in delivering judgment, that no such case could be found. This, to my niipd is conclusive, that a plaintiff who has sued for a tort done to his person, cannot file a bill of discovery to compel the defendant to confess the comjnission of the ,tort.

2. But we think it settled by a previous decision of this court, that a writ .of error will not lie to review .the action of an inferior court, refusing to grant an order requiring a party, to whom interrogatories have been .propounded, to answer them under oath. In the case of Mallory v. Matlock, 7 Ala. 757, it is said, “ the refusal of the court tp grant an order, requiring the defendant to answer the interrogatories propounded to him, is not a matter that can be reviewed by writ of error.” It is not a final sentence, judgment or decree, but is merely an interlocutory order, ■ and does not necessarily enter into the final judgment. If the court should refuse to grant the order, when a proper application is made to it, this error may be corrected by mandamus duripg the pendency of the suit: But it cannot be reviewed by writ of error, nor can the plaintiff in error, by taking a non-suit because of the refusal of the court to make the order, bring the case before this court by this writ,

The judgment must be affirmed.