Hibernia Bank & Trust Co. v. Beech

Cook, P. J., delivered the opinion of the court. The appellant, a foreign corporation, instituted an action in ejectment against the appellee, returnable to the November term, 1917, of the circuit, court pf Lamar county, which term began November 26th. Appellee filed his plea fifteen days before the beginning of the term, and filed therewith certain interrogatories to be answered by.the appellant, under section 1938, Code of 1906 (section 1598. Hemingway’s Code). Two days before the court convened appellant sold the land described in the declaration, and thereupon filed a motion asking leave to dismiss its suit, without prejudice, for the reason that it no longer owned the land in controversy. The defendant also filed a motion to dismiss plaintiff’s action because it had failed to answer the interrogatories within a reasonable time. The court, after a consideration of both motions, sustained; the motion of appellee; hence this appeal..' The effect of this decree is to adjudicate the merits in favor of appel-lee, and adjudicate that the appellant had no title to the land in controversy. It appears that the appellant had, in fact, parted with-whatever title it had to the land, and this being true, it was not only proper but the duty of the appellant to dismiss its suit- — suffer a nonsuit. Again, it does not appear that appellant was in default in the circumstances. There was no unreasonable delay in-responding to the interrogatories filed by appellee. It seems to us that appellant has not been brought within the drastic provisions of the statute. This statute does not work automatically to defeat justice, but was [676] intended to penalize one who has undoubtedly had time to comply with its requirements. McLean v. Letchford, 60 Miss. 169. So far as the rights of the defendant are concerned, its controversy with the plaintiff was at an end when appellant sold the land, and appellant will, of course, be taxed with the costs incurred previous to the nonsuit. There is nothing in the record to suggest bad faith on the part of appellant. “Within a reasonable time” is a flexible term. Under a certain state of circumstances it may be unreasonable to delay answering the interrogatories beyond a certain time, but under the facts of this case it cannot be said that there was unreasonable delay. The lower court will be reversed, and decree here for appellant. We think, however, that appellant should be taxed with all costs accruing in the lower court to the time appellant asked for a nonsuit. Reversed, and decree here.