Cedar Rapids National Bank v. Murray

53 So. 393, 98 Miss. 123

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

Section 1938 of the Code of 1906 is in the following language: “If the testimony of the 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.”

The plea of res adjudicata is good. Non-compliance by either party to a suit with the provisions of § 1938, Code 1906, authorizes the court, if he be plaintiff or complainant, to dismiss his cause, and if defendant, to strike his plea or answer from the files and render judgment by default, or that the bill be taken as confessed, as the case may be. Such failure by either party to comply with the terms of the statute is taken as a confession that his cause is without merit, and the court so adjudges." Such judgment is an adjudication of the issues involved, is a judgment on its merits, and concludes the parties from relitigating, the same issues in another suit. Affirmed.