State Ex Rel. Smith v. McCord

83 So. 71 | Ala. | 1919

It is true that section 4049 of the Code of 1907 authorizes either party to a civil suit to propound interrogatories to the other party, but said statute does not specifically name or include the state, nor is it made applicable thereto by any other provision of the Code. As a general rule of statutory construction, without any express legislative declaration, general words in a statute do not apply to the state, nor affect its rights, unless an intention to the contrary appears. Ex parte McDonald, 76 Ala. 603; State v. Allen, 71 Ala. 543; State ex rel. Lott v. Brewer, 64 Ala. 287. There is no express provision making this statute applicable to the state, nor can we say that there is a necessary implication that it was the intent of the lawmakers to make it apply, simply because the state was not specially excepted from the operation of same. On the other hand, section 3662 of the Code of 1907 recognizes this rule by a special reference to the state.

We are, of course, aware of the rule that prohibition does not generally lie to restrain judicial action, when the petitioner has a complete and adequate remedy by appeal; but we do not deem an appeal as entirely adequate in the instant case. The threatened erroneous ruling could, perhaps, be corrected, and the cause reversed upon appeal, as to a nonsuit or judgment by default; but the trial court can needlessly delay matters by a continuance of the case until the interrogatories are answered, and before rendering judgment by default or nonsuiting the state, if it failed to answer, and the state might answer the same after the trial court had ordered it to do so, in preference to being nonsuited. And while the order requiring the state to answer would be revisable upon appeal, the defendant would in the meantime have gotten the benefit of compelling the state to show its hand before the trial of the case upon its merits.

The trial court erred in not striking the interrogatories upon the motion of the state, and the writ of prohibition is hereby awarded, restraining the trial court from compelling the state to answer said interrogatories under any of the terms or penalties prescribed by section 4055 of the Code of 1907.

Writ awarded.

McCLELLAN, SAYRE, and GARDNER, JJ., concur.