248 F. 956 | S.D.N.Y. | 1918
This is a motion to set aside and vacate a decree entered pro confesso herein.
The respondents Pendleton now move to vacate the decree pro con-fesso upon the ground that the same could not be granted, and. further, that the interlocutory and final decrees and judgment entered were beyond the power of the court and in violation of the due process of law guaranteed by the Fifth Amendment of the Constitution. The respondents rely upon Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215, in maintaining that an interlocutory and final
The affidavit in opposition to this motion states that the respondents’ counsel appeared after notice and stated that he would not oppose the motion, but requested the withholding of the entry of the order until the following Monday. Notice of reference was then served upon the attorney for the respondents, and the commissioner took testimony resulting in this decree. In Hovey v. Elliott, supra, the respondent’s answer was stricken out and a decree pro confesso entered, where the defendants had failed to pay money into court pursuant to an order made after the answer was filed. The defendants were adjudged guilty of contempt and the decree so provided, and, further, that if they failed to comply with the decree for the payment of the money into court the answer filed by them in the cause be stricken out, and that the cause then proceed as if no answer had been interposed. The Supreme Court, speaking through Mr. Justice White, held that granting a decree pro confesso and striking out the answer was a violation of the defendant’s rights under the due process of law provision of the Constitution,' and this case was cited and followed in this circuit in The Fred M. Lawrence, 94 Fed. 1017, 36 C. C. A. 631. Judge Learned Hand later refused to strike out an answer for failure to answer certain interrogatories in Barnes v. Trees (D. C.) 194 Fed, 230.
A decree, therefore, which is granted in violation of these authorities, and of the Constitution, is void, and the respondents are entitled to have it vacated as a matter oí right.
“The defendant shall have a right to require the personal answer of the libelant under oath of solemn affirmation to any interrogatories which he may, at the close of his answer, propound to the libelant, touching any matters charged in the lihel or touching any matters and defenses set up in the answer subject to the like exception as to matters which shall expose the libel-ant to any prosecution or punishment, or forfeiture, as is provided in the thirty-first rule. In default of due answer by the libelant to such interrogatories, the court may adjudge the libelant to he in default, and dismiss the' libel, or may compel his answer in the premises by attachment, or take the subject matter of the interrogatories pro confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice.”
But this rule does not apply to the respondent, but applies to the libelant. Rule 58 of the Rules of Practice of the Courts of Equity of the United States (198 Fed. xxxv, 115 C. C. A. xxxv) provides:
“The court or judge upon motion and reasonable notice may make all such orders as may be proper to enforce answers to interrogatories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order, shall be liable to attachment and shall also he liable If a plaintiff, to have his hill dismissed, and, if a defendant, to have his answer stricken out and he placed in the same situation as if he had failed to answer.”
“After joinder of issue and before trial, any party by leave of the court granted on motion may examine the opposite party, his agents or representatives, or deliver interrogatories in writing for the examination of such party, his agents or representatives, with rqgard to any fact material to the issues. In case the order shall provide for an examination by interrogatories, the answers to the interrogatories shall he made under oath and filed within ten days after the delivery thereof, or within such further time as may be allowed by the court.”
This appears to be the admiralty court’s own rule, applicable in a situation as here presented.' The inquiry, therefore, must be: What is the relief which should be granted for failure to answer interrogatories propounded under this rule? In the instant case, leave of tne court was not granted on motion for propounding the interrogatories; but counsel says the interrogatories were propounded in accordance with the common practice prevailing in the district. While moh may be the practice (since the admiralty practice is free from technicalities), still a failure to follow this common practice, which is not provided for by any rule of law or of the court, should not condemn the liligant failing to answer interrogatories to the extreme penalty of depriving the litigant of his day in court.
Rule 32 provides that the libel may be dismissed if the libelant fails to answer interrogatories; hut the dismissal is not upon the merits, and the libelant may sue again. Rut here is a judgment on the merits against the respondents and forecloses forever the respondents’ opportunity to he heard. The failure to answer the interrogatories, if propounded under an order of the court, may be penalized by excluding testimony upon the subject-matters of the inquiries or by punishing for contempt; hut, where an answer stands to the libel, there can only be a decree after the case is reached in its regular order upon the calendar and libelant’s right to succeed shown by evidence before a judge of the court.
I think the respondents are right in their contention, and, even though there have been flagrant defaults by them, I am obliged to vacate this decree, for the reason that it is entered in violation of the respondents’ constitutional rights.