Street v. Griffin

78 So. 965, 201 Ala. 397, 1918 Ala. LEXIS 150

• Court: Supreme Court of Alabama
• Decided: April 18, 1918
• Docket: 7 Div. 941.
• Status: Published

Opinion

MAYFIELD, J.

This appeal involves the correctness and propriety of two orders of the circuit court -of Clay county, one directing the plaintiff to pay the costs of the suit up to that date for failure to answer interrogatories propounded to him by the adverse party under chapter 84, art. 9, §§ 4049-4057, and the other dismissing the suit for the failure to comply with the former order of the court.

[1] The rights and remedies given by this article of the Code were unknown to the common law, and oven the circuit court, as to enforcing the statute, is treated, quoad hoc, as a court of limited jurisdiction; and hence the record should affirmatively show a strict compliance with the statute as to all orders enforcing the rights conferred by the statute. Goodwater v. Street, 187 Ala. 621, 34 South. 903.

The record on this appeal does, however, show every fact necessary to support the orders of the court of which complaint is made. It shows that interrogatories were filed with the clerk, with affidavits, as provided by section 4049 of the Code. It shows that the clerk issued a copy of the interrogatories, and that the copy was served upon the adverse party as required by section 4050 of the Code. It also shows that no answers to the interrogatories were filed within 30 days after the date of thei service. In other words, the record is sufficient to confer jurisdiction on the court to make the orders authorized by section 4055, and no. order was made which is not authorized by section 4055 of the Code. There is likewise nothing to show any impropriety or incorrectness in the orders, but tire recitals in the record fully warrant the action taken by the court.

[2] It is true the first order required the cost to be paid during the day the order was issued, and the dismissal was made on the same day of the first order, but the record also shows a forfeiture, and a refusal of plaintiff to comxrly with the first order. The plaintiff having refused to comply, there was no need of giving him all of the day in which to comply; and he certainly will not be heard to complain as for time until he offers to comply with the order, which was a condition precedent to the further prosecution of his suit. There is nothing to show that the orders were harsh or, unjust, or that there was any excuse for the failure to answer the interrogatories. If the record speaks the truth, and we must'of course treat it as doing so, it shows not only a failure but a refusal of the plaintiff to comply with the requirements of the statute as to answering interrogatories, and with a proper order of the court requiring him to pay the costs of the suit.

It results that the judgment appealed from must be affirmed.

Affirmed.

ANDERSON, C. L, and SOMERVILLE and THOMAS, J3\, concur.