Givens v. Southern Express Co.

Cook, J., delivered the opinion of the court. Appellant sued appellee for an alleged libel; his declaration was filed August 19, 1911. With the declaration was filed interrogatories to the appellee, and service of same was had on the same day. On the return day of the court in which the suit was instituted, September 23, 1911, appellee made a motion that appellant be required to give security for costs. On the 25th day of September appellant moved the court to strike from the files the motion for costs, because appellee had not answered the interrogatories addressed to it under section 1938, [841] Code 1906. This motion was overruled by the court, and of this action of the trial court the first assignment of error is predicated. There are several other assignments of error; but we will only discuss the one determinative of the case. Does section 1938, Code 1906, require a defendant to answer interrogatories propounded to him on' or before the return day of the suit? It will be noted, in this case, the declaration was filed just within the time to make the case triable at the return term. Incidentally it may he stated that a demurrer to the declaration was seasonably filled and properly sustained; hut, without considering this fact, appellee, defendant below, first filed a proper motion asking the court to require plaintiff to give security for costs, and it was this motion which appellant moved the court to strike from the files. Does the statute contemplate that defendant to a suit cannot plead at all, unless he has first answered the interrogatories filed with the declarations. The statute under consideration reads this way: “If the testimony of a party to the suit who resides out of the state be desired .by the adverse party, interrogatories to him may be filed in the clerk’s office, and a copy thereof, with notice of filing, shall be given the party, or his attorney or solicitor; and if he fail to answer such interrogatories within a- reasonable time, his plea shall be dismissed, if he be plaintiff or complainant, and if he be defendant'his plea or answer may be taken off the file and judgment by default entered, or the bill be taken as confessed.” This section is a part of chapter 46, entitled “Evidence,” and is a valuable and helpful provision of law designed, to aid litigants in obtaining facts in the possession of opposite parties. What is “a reasonable time” in the purview of the statute? While the statute may be remedial in one sense, the penalty imposed upon the defaulting party is radical, and [842] we believe there should be a manifest violation of its terms before a court would be justified in inflicting the penalty. It will be observed, “if he fail to answer within a rea-he be plains plea or t by de-sonable time, his plea shall be dismisse tiff or complainant, and,- if he be def answer may be taken off the file, am fault entered or the bill be taken as confused. as cIt would seem from the language em templated that the cause should be at could be said that the default had been made, words, as illustrated by the pleadings in the case, the declaration was clearly demurrable, and the defendant was not called upon to traverse the same. It is an unreasonable consumption of time for the defendant to insist that the complaint against him shall set out a state of facts which, if true, would entitle plaintiff to recover before he goes to the trouble and expense of answering impertinent questions? We think not. In this case the defendant, by proper motion, supported by affidavit, invoked the benefit of section 940 of the Code before answering the interrogatories propounded to it. Is it an unreasonable consumption of time for the defendant to demand that an insolvent plaintiff be required to give security for costs before it answers interrogatories affecting a cause which may never be tried, because of plaintiff’s refusal to secure the costs in obedience to the orders of the trial court? We think this query must also be answered in the negative. A remedial statute carrying a drastic penalty should not be applied, unless it has been clearly violated, and, taking the statute in its entirety, we think a party to a lawsuit is entitled to have the decks cleared for action before he is compelled to- furnish ammunition to his enemy. There must be a real lawsuit, and not a tentative lawsuit. An issue must be properly tendered and [843] accepted, or the plaintiff must be in a position to demand an answer to his complaint — he must he intrenched himself before he can require his opponent to give information to he used against him. ■ The refms^^iyiie court to strike the motion for costs We thij^^^^Btoer overruling of the motion to strike from th^mffiHffiotion for costs renders it unnecessary to decidelH^H^ the court erred in sustaining the motion to require plaintiff to secure the costs, because the court also properly sustained the demurrer to plaintiff’s declaration, and granted plaintiff sixty days in which to amend his declaration, and, plaintiff having failed to amend within the prescribed time, we cannot say that it was error for the court to refuse plaintiff’s amendment tendered after the expiration of the time limit. It follows, therefore, that the overruling of the motion to strike the motion for costs and enter a judgment by default ended the battle. Affirmed.