Sparks v. J. S. Reeves & Co.

51 So. 574, 165 Ala. 352, 1910 Ala. LEXIS 39

• Court: Supreme Court of Alabama
• Decided: January 19, 1910
• Status: Published

Opinion

MAYFIELD, J.

— This appeal is from a judgment by default, rendered in response to a motion, for failure on the part of the defendant, appellant here,- to answer interrogatories propounded to him under the statute. Sections 1850-1858, Code 1896. The judgment entry ascertains and sets forth all the jurisdictional facts necessary to support the judgment. — Goodwater Co. v. Street, 137 Ala. 621, 34 South. 903.

The first three assignments of error relate to the action of the court in overruling defendant’s demurrers to the motion for judgment by default and in denying defendant’s motion to strike that motion. The demurrers and the motion to strike proceed largely upon the same grounds. If either method is the proper way to reach the end aimed at, a question not necessary to be here decided, it is sufficient to say that the motion for judgment by default was not subject to any of the grounds assigned thereto by the demurrers or motion to strike.

An examination of the interrogatories discloses that they are for the most part relevant and pertinent to the case made by the complaint. Some of them, if answered, might have a criminating tendency, or, at least, a tendency to show fraud upon part of defendant in reference to obtaining the goods. This fact does not, under the statute, excuse him from answering such as were pertinent and had no such tendency. By a refusal to answer any, or a failure, for that matter, to answer at all, defendant was in default. The better practice would seem to be, and the intention of the statute (Code, § 1858) is, that within the time alloAved such interrogatories as are pertinent and do not tend to criminate should be answered; and at the same time objections, properly setting forth the grounds, should be filed to such questions as are impertinent or as tend to criminate. Whether they are such is a matter that addresses itself to the court, and not to the party. — Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; L. & N. R. R. Co. v. Hall, 91 Ala. 118, 8 South. 371, 24 Am. St. Rep. 863; So. Ry. Co. v. Bush, 122 Ala. 472, 26 South. 168.

The appellant also insists that the court erred in refusing, during its hearing on the motion for judgment by default for failure to answer interrogatories, to pass upon the demurrers going to the original complaint. While it appears from the judgment entry and by the bill of exceptions that the court did decline to hear and determine the demurrers to the original complaint, it must be remembered that this appeal is not from a judgment by default for want of a plea or demurrer, This court has held that the statute under which the court was proceeding authorizes the court to disregard pleas, without any formal order setting them aside, just as if no pleas had been filed. — Allen v. Lathrop-Hatton Lumber Co., 90 Ala. 490, 8 South. 129. The defendant was in default when filing these demurrers, and for this reason the court could have disregarded them. — Loc. Acts, 1898-99, pp. 176-182.

Other assignments of error go to the admission and rejection of certain testimony on the execution of the writ of inquiry. It seems that after judgment by default, as in this case, the only question to be inquired into is as to the amount of damages. No evidence could be introduced which-went to the defense of the judgment, or which would relieve defendant entirely of liability. — Ewing v. Peck, 17 Ala. 339; Curry v. Wilson, 48 Ala. 638; Dunlap v. Horton, 49 Ala. 412; Washington Co. v. Porter, 128 Ala. 278, 29 South. 185. The evidence allowed to be introduced comes within the first principle above announced, and that excluded falls within the other principle declared.

The other assignments complain of the granting of the judgment by default, and the refusal of the court to set it aside, on motion of defendant. Both of these matters are within the discretion of the trial court, and, unless abused, are not revisable upon appeal. — Goodwin, etc., v. Harrison, 6 Ala. 438; Pool v. Harrison, 18 Ala. 54.

We find no error in the record, and the judgment of the lower court is affirmed.

The opinion in this case was prepared by Justice Haralson, and has been adopted by the court.

Affirmed.

Dowdell, C. J. and Simpson and McClellan, JJ., concur.