Theis v. Chicago & Northwestern Railway Co.

Waterman, J. [524] If it be conceded that plaintiff had a right to amend his original petition in August by attaching interrogatories thereto1, yet we do not think he had any right to refile that pleading, which is practically what he did, and thus compel defendant to answer it a second time. Defendant’s motion to strike this pleading should have been sustained. 'Substantially this ground, among others, was set up in the exceptions to the interroga ■ tories. If the trial court sustained the exceptions on this ground, and thus, in part, reconsidered its former ruling, the plaintiff has no1 just ground of complaint. We may say, further, in this connection, that plaintiff averred that he knew of no other source from which he could procure the testimony that he sought to elicit by these questions. He must have been aware of this fact at an early stage of this pro [525] ceeding, yet he waited until almost the eve of the trial before filing the interrogatories. We have a right to take into consideration a fact that the plaintiff should have considered also, and that is that the defendant could answer only through some officer or agent. -Indeed, when we consider the character of the questions, we are sure that the ■information would have to come from many agents. It was therefore manifest that it would require considerable time to make proper responses. Had these interrogatories been permitted to stand, it would necessarily have postponed the trial. Plaintiff offers no excuse for his delay. On this* ground, we think the action of the trial court can be sustained, Jones v. Berryhill, 25 Iowa, 289. Negligence in procuring testimony in this way is no more excusable than it is where the customary and usual methods are resorted to. It is true that the trial was not in fact had in Aug’ust, but-, so far as we can see, this was only because of the time taken in disposing of the questions raised by the filing of these interrogatories. 3 II. It is further charged that the trial court erred in not continuing the action, on plaintiff’s application, to -await the result of an appeal from its rulings sustaining the exceptions to the interrogatories. What we have already said, perhaps, renders it unnecessary that any special attention be given to this point. We may add, however, that there was no error in denying such a general request. Moreover, it is questionable if an appeal would lie from such an order. Code 1813, section 3164; Baldwin v. Mayne, 40 Iowa, 687; Cook v. Railroad Co., 75 Iowa, 169.— Areermed.