Hunter v. Smith

Martin, J. delivered the opinion of the [178] court. This case is before us on a bill of exceptions to the opinion of the district court, refusing leave to the defendant to avail himself of his answer to certain interrogatories put him by the plaintiff in a former suit between the parties, which was discontinued. West'n Dis'ct October, 1826. The district court in our opinion erred. The defendant has an undoubted right to avail himself of his own answer to the plaintiff’s interrogatories, and such answer is a legal piece of evidence which may be used by either party. Berthole vs. Mace, 5 Martin, 592. The legislature has declared that such an answer is evidence in favor of the party answering, unless contradicted by positive literal proof or two witnesses. Civil Code, 316, art. 263. Can the plaintiff deprive the defendant of this undoubted right to use the answer in evidence, by dismissing his suit and recommencing it. The defendants may give in evidence the record of a former suit, between the parties, although it was dismissed. Bore vs. Quierry's Ex’rs. 4 Martin, 545. Yet the suit was [179] dismissed, not by the plaintiff’s sole act, but upon an agreement between the parties. Thomas for the plaintiff, Baldwin for the defendant. The record of a suit is evidence, although the proceedings were not continued, ’till judgment, Barlow vs. Dupuy, 3 vol. 442. A party cannot deprive his adversary of any piece of evidence, which he may incautiously furnish. Thus we have held, a defendant cannot amend his answer by withdrawing an admission he has made, Vavasseur vs. Bayon, 11 Martin, 639, and that a plaintiff has no right to withdraw his answer to the defendant’s interrogatories, although there it was objected to. Posten vs. Adams, 5 Martin, 272. It is therefore ordered, adjudged and decreed, that the judgment of the district court he annulled, avoided and reversed, and the case remanded for trial, with directions to the judge to permit the defendant to read in evidence his answer to the interrogatories put to him by the plaintiff, in the former suit, and it is ordered that the plaintiff and appellee pay costs in this court.