National Fertilizer Co. v. Holland

COLEMAN, J. The mere announcement of the parties, that they are ready for trial is not such an entering on the trial, as to preclude a party from making a motion to suppress a deposition. — Code § 2810. The court has the right to demand of the parties, whether they are ready before he is required to hear and determine any question connected with the cause. The rule declared in Morgan v. Wing, 58 Ala. 301, will not be extended further than as therein stated. Interrogatories were propounded by the plaintiff under subdivision 5, of section 2801 of the Code, and filed with the clerk. The motion to suppress the deposition was based upon the ground, that the opposite party had not been served with notice of the filing of the interrogatories and had no opportunity to file cross-interrogatories. A party has the right upon making affidavit to take the deposition of a witness ore tenas under section 2801, except as to subdivision 3, after proper notice to the adverse party. If, however he proceds to take testimony under either subdivision by interrogatories filed with the clerk of the court, the opposite party is entitled to no tice in writing, who has 'ten days thereafter to file cross-interrogatories. — Code, § 2803. The court did not err in suppressing the deposition. . The judgment entry and bill of exceptions are not consistent. The judgment entry states : “This day came the parties by their attorneys, and the defendant moves the court to suppress ihe deposition of J. B. Reid, which was considered by the court, and the deposition suppressed. Thereupon the plaintiff makes known to the court, that it will take a non-suit, it is, therefore, considered by the court that a non-suit be entered, ” &c. The bill of exceptions states that after the suppression of the deposition of J. B. Reid, the plaintiff read to the court interrogatories filed by the plaintiff to the defendants under section 2816 of the Code, and answers thereto, and moved the court under section 2820, 1st, to attach the parties; 2d, to continue the cause until full answers are made ; or, 3d, to direct a judgment by default; each of which motions was based upon the averment that the answers were not full, or were evasive. The motions [417] were overruled by the court. The judgment entry recites that the non-suit was entered in consequence of the suppression of the deposition of Reid, whereas the bill of exceptions shows, that the non-suit was suffered in consequence of the suppression of the deposition of Reid and the adverse rulings of the court upon the said several motions. Whether the judgment entry should prevail or not, the assignment of error as to the action of the court upon the motions of the plaintiff is too indefinite to call for any adjudication by this court. It is in effect that the court “should have granted one of the three motions.” The ruling of the court upon each of the motions, might have been matter for separate assignments of error, but when the assignment is, that the court erred in not granting one of the three motions, without specifying the particular error complained of, the assignment is so uncertain and indefinite that we will decline to consider it. — Cobb v. Malone, 92 Ala. 830 ; Murphree v. City of Mobile, 96 Ala. 141. No organization, or the members thereof, can withhold the evidence of contracts made by it or them with other persons or the public on the ground that it is a secret order, and the production of the books which contain the evidence wdl expose its secrets, nor can such organization or persons, determine the legal effect of its resolutions, pertaining to the matter of the contract. Only those who have the custody or control of the books can be required to produce them, and a motion to attach parties who have not the custody of the books, or the authority to produce them, can not be granted. AVe find no error in tire record. Affirmed.