Mallory v. Matlock

GOLDTHWAITE, J. — 1. The refusal of the County Court to make the order asked for, at the instance of the defendants, to require the plaintiff to answer the interrogatories propounded by them, is not a matter which can be reversed by writ of error. It is not a matter entering into the final judgment of the Court, but is merely one mode, out of many, by which evidence is to be brought before the jury; and does not, to us, [760] seem to materially differ in its analogies, from the suing out of a commission to take the deposition of a witness. If the Court acts improperly in such a matter, it may possibly be subject to revision after the judgment is given, if the exception is properly taken, but if it refuses to act when a proper case is made out, it is quite likely that a mandamus would afford the appropriate remedy. 2. With respect to the supposed discontinuance arising out of the omission of th-e plaintiff to take judgment by nil dicil,-for the portion of the debt unanswered by the plea, as well as the defect of form in the judgment entry we can only say, they belong to a class of exceptions which have never of late years, been recognized in this State, as affecting the validity of a recovery. The whole course of legislation, and of judicial decision in accordance with it, has been to divest our practice of technicalities, which, instead of advancing justice, tend greatly to bring the science of law into discredit. What injury has been done to these parties by the omission of the plaintiff to take a judgment in the manner it is contended he should have done ? or why should the defendants complain, when every thing they asserted in defence of the action, has been found untrue by the verdict ? The case of Deshler v. Hodges, 3 Ala. Rep. 509, affords no ground to the defendants, as no question as to the effect of a discontinuance was there decided, but what is said is a mere iteration of what is found in the books upon this subject. 3. In the present case the demurrer was withdrawn, and. the error which there might otherwise have been in sustaining it, was thus corrected, and we entertain no doubt of the correctness of such a course of practice. 4. The objection to the omission of the profert of the writing obligatory in the declaration, is not seriously pressed, nor is it available on demurrer, under our practice. [Botts v. Bridges, 4 Porter, 274.] We are unable to perceive any error in the record, and therefore the judgment of the County Court is affirmed.