Winneshiek County State Bank v. District Court

212 N.W. 391, 203 Iowa 1277

• Court: Supreme Court of Iowa
• Decided: February 15, 1927
• Status: Published

Opinions

Stevens, J.

-This is an original certiorari proceeding in this court to review certain rulings and orders by the district court of Allamakee County, requiring and directing the plaintiff herein, who is also the plaintiff in the action below, to answer certain interrogatories attached to the answer of the defendants therein. The plaintiff is a banking corporation, and has pending in the district court of Allamakee County an action against Sophia and Amos W. Nagel upon two promissory notes for $4,000 and $1,000, respectively, executed to it December 1, 1921. The answer is lengthy, and with much detail and elaboration sets np fraud in the inception of the notes, together with a 'want of consideration. Attached thereto is a-series of ten interrogatories which the plaintiff is asked to answer. The plaintiff, however, filed exceptions and objections to each of the said interrogatories, setting up that the testimony sought is immaterial, incompetent, and irrelevant. The petition filed in this court also alleges that the questions call for incompetent, immaterial, and irrelevant matter, and that:

“If plaintiff answers said interrogatories, he will suffer an irreparable injury, will be greatly prejudiced and hampered in the prosecution of his just cause against the said defendants, Sophia Nagel and Amos W. Nagel, on said note, and his right of action will be seriously hampered and impaired.”

Neither the exceptions nor the objections to the interrogatories nor the allegations of the petition proceed upon the theory that any of the matters called for are privileged, or that they will necessarily require disclosures that will work serious or irreparable injury to the plaintiff. This proceeding was instituted prior to the date fixed by the court below for the filing of answers to the interrogatories; hence, no judgment has been entered.

The right of the plaintiff, which is denied by the defendants, to have the rulings complained of reviewed in this proceeding is the only matter requiring decision.

The right to file interrogatories at the time of filing a pleading is purely statutory, and the procedure to be followed is controlled thereby. The statute provides that either party may annex to his petition, answer, or reply written interrogatories to any one or more of his adversaries ‘ ‘ concerning any of the material facts in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and the party answering.” • The party answering need not confine his answers .to responding merely to the interrogatories, but may state any new matter concerning the action, which he may also read as a deposition. The interrogatories must be answered at the time the pleading to which they are attached is answered or replied to, unless exceptions are filed thereto, in which event the court must determine the propriety of the interrogatories, and which, if any of them, shall be answered, and fix a time therefor. The party answering shall distinguish clearly between what is stated upon his personal knowledge and what from information or belief merely. The answers must be verified by the affidavit of the party making them, to the effect that the statements therein made are of his own personal knowledge, and that they are true, or that they are made from information of others, and that he believes the same to be true. When the party interrogated is a corporation, the answers and verification thereof shall be made by the officer or agvent of such corporation having knowledge thereof. Trial of an action by ordinary proceedings shall not be postponed because of the failure to answer interrogatories if the party interrogated is present at the time of the trial, so that he may be orally examined; nor shall such trial be postponed if the party whose duty it is to answer the interrogatories is absent,' unless an-affidavit reciting the facts which the interrogator believes will be proved by the answers, and that such interrogatories have not been filed for the purpose of delay, is .filed. If, however, it be admitted by the party interrogated that the facts stated in the affidavit are true, the trial shall not be postponed. Sections 11185 to 11190, inclusive, Code of 1924. The further material provisions of the statute are as follows:

‘ ‘ Sec. 11191. Where a party filing interrogatories shall also file an affidavit that he verily believes the subject of the interrogatories, or any of them, is in the personal knowledge of the opposite party, and that his answers thereto, if truly made from such knowledge, will sustain the claim or defense, or any part thereof, and the opposite party shall fail to answer the same within the time allowed therefor, or by the court extended, the claim or defense, or the part thereof, according to such affidavit, shall be deemed to be sustained, and judgment given accordingly. '

‘ ‘ Sec. 11192. The court may compel answers to interrogatories by process of contempt, and may, on the failure of the party to answer them, after reasonable time allowed therefor, dismiss the petition, or strike the pleading of the party so failing from the files.”

No affidavit, as allowed by Section 11191, was filed by the defendants Sophia and Amos W. Nagel.

Did the court, in its rulings upon the exceptions and objections to the interrogatories, and in ordering that same be an swerecl, exceed “his proper- jurisdiction” or otherwise act illegally? If so, the same may be reviewed in this proceeding, but not otherwise. The foregoing provisions of the statute have sometimes been referred to as substituting the proceeding therein authorized for the common-law bill of discovery. Beem v. Farrell, 135 Iowa 670. This decision apparently proceeded upon an erroneous interpretation of Section 3604 of the Code of 1897. The equitable action to obtain a bill of discovery was long since abrogated by statute in this state, except as to certain definitely prescribed matters. The decision in the Beem case also overlooks numerous prior decisions of this court.

Commencing with Lane v. Krekle, 22 Iowa 399, it has always been held that the statute creates a rule of evidence, together with a summary method by which one party may obtain the testimony of his adversary. Perry v. Heighton, 26 Iowa 451; Greene, Rowley & Co. v. Woods, 34 Iowa 573; McFarland v. City of Muscatine, 98 Iowa 199; Independent Sch. Dist. v. Independent Sch. Dist., 148 Iowa 154. The answers to the interrogatories when filed may be read as a deposition by either party. Such is the plain provision of Section 11185 of the Code. The necessary corollary to the rule stated is the further rule that the interrogatories must relate to matters relevant and material to some issue in the case and competent to be introduced as evidence upon the trial. Greene, Rowley & Co. v. Woods, supra; McFarland v. City of Muscatine, supra; Free v. Western Union Tel. Co., 135 Iowa 69; Theis v. Chicago & N. W. R. Co., 107 Iowa 522, 525; Red P. Cattle Club v. Red P. Cattle Club, 108 Iowa 105; Lee v. Blumer, 189 Iowa 1145.

That the statute was designed to provide merely a rule of evidence and a summary proceeding to obtain the same is further emphasized and illustrated by the application made thereof in numerous decisions of this court, — in fact, in all of them touching the subject. Perry v. Heighton, supra; Hogaboom v. Price, 53 Iowa 703; Beacham v. Gurney, 91 Iowa 621; Sully v. Wilson, 44 Iowa 394; Modern Steel Struct. Co. v. Van Buren County, 126 Iowa 606; Free v. Western Union Tel Co., supra; Independent Sch. Dist. v. Independent Sch. Dist., 148 Iowa 154; Baldwin & Co. v. Moser, 155 Iowa 410; Fahey v. Ancient O. U. W., 187 Iowa 825.

The rule does not appear to have ever been permitted to operate oppressively or without due regard-to the rights of litigants. Some discretion must, of course, be allowed to the court below in determining the propriety of the interrogatories, and perhaps some liberality indulged in favor thereof; but the materiality of the evidence sought, its relevancy to the- issues to which the interrogatories relate, and the admissibility of the answers in evidence are necessarily the determining factors in ruling upon exceptions or objections thereto.

The court was bound to recognize and follow the statute which required him to determine the propriety of the interrogatories and whether the exceptions and objections thereto should be sustained or overruled. Surely, its jurisdiction was not exceeded when plaintiff’s objections to.the interrogatories were overruled. The most that could be urged against such ruling is that it was erroneous. The court having jurisdiction to overrule the objections, it is difficult to conceive how its order requiring and directing the plaintiff to answer the interrogatories, the propriety of which had already been determined, could be illegal in such sense as to permit a review thereof in this proceeding.

This is the first time review of a similar ruling has been sought on certiorari. Questions involving the statute often considered and passed upon by this court have always arisen upon appeal. Rulings upon the admissibility of evidence during the progress of a trial are mere incidents thereof, and reviewable neither upon direct appeal nor by certiorari. Error therein inheres in the judgment. Richards v. Burden, 31 Iowa 305; State v. Arns, 72 Iowa 555; Northwestern Trad. Co. v. Western L. S. Ins. Co., 180 Iowa 878. The interrogated party may always show good cause for not answering* the interrogatories, and it may be assumed that the court will not compel answers to be made of privileged matters or that may involve disclosures not proper to be made and not material or relevant to any issue in the case. In passing upon the objections, ordinary rules of evidence are to be applied.

There is not in the entire record, including the brief and argument of counsel for plaintiff, a suggestion of any other ground of exception or objection to the interrogatories than that they are incompetent, immaterial, and irrelevant. The brief and argument proceed wholly upon the theory of the objections urged, with the single addition that the ruling of the court was arbitrary and that the interrogatories are in the nature of a “fishing expedition.” The statute having conferred specific authority upon the court to determine the propriety of the interrogatories and to rule upon objections and exceptions thereto, the most that can be urged is that the ruling was erroneous. The term “illegal” means something different from “erroneous”’ and, while a thing may be both erroneous and illegal, it is by no means necessarily illegal because erroneous. Ryan v. Hutchinson, 161 Iowa 575; Iowa Loan & Tr. Co. v. District Court, 149 Iowa 66.

We said in Witmer v. District Court, 155 Iowa 244, that:

“* * * the general proposition that an erroneous ruling of a court in a proceeding of which it has jurisdiction cannot be reviewed on certiorari has so often been announced that further citation of authorities would not be justified.”

We conclude, therefore, that certiorari is not the proper method to review the ruling and order of the court upon the admissibility of the evidence sought, or the order directing plaintiff to answer the interrogatories.

Sections 11316 to 11318, inclusive, Code of 1924, prescribe a method for compelling the production of books and papers upon the petition of one party to an action, somewhat analogous to the summary method we have been discussing of procuring testimony of one party by an adversary. We refer to the latter provisions of the statute for the reason that a writ of certiorari to review the ruling and order of the court directing the production of books and papers has been frequently sustained by this court. These separate provisions of the statute were designed to accomplish wholly different purposes, although both relate to summary methods of procuring evidence. If one party to an action desires the other party to produce books or papers which he believes are in his possession and under his control, such party may file a separate petition, duly verified, alleging the matters required by Section 11317, Code of 1924. The real purpose of the above statute is to provide for the examination of books and papers which may be admissible in evidence, which, without such order, are not available to the petitioner.

Construing the statutes last cited, we held, in Dalton v. District Court, 164 Iowa 187, that the review sought involved, in effect, only a ruling upon the admissibility of evidence, and denied the writ.

In Finn v. District Court, 145 Iowa 157, we held that the court has inherent power to compel witnesses to answer questions on cross-examination in a proceeding to take depositions. In that case, it was suggested that perhaps the plaintiff might refuse to obey the order of the court, subject himself to a possible proceeding for contempt, and have the matter reviewed by this court on certiorari. The question was not involved, and the remark of the court amounted to nothing more than a mere suggestion. The right of review by certiorari was denied in Iowa Loan & Tr. Co. v. District Court, supra, but by a divided court. The opinion in this ease emphasized the discretion of the trial court in the matter considered, as the reason for the conclusion reached. The writ has, however, in numerous later cases involving orders for the production of books and papers been sustained as a method of review. Grand Lodge of A. O. U. W. v. District Court, 150 Iowa 398; Davis v. District Court, 195 Iowa 688; Hemmings v. Home Mut. Ins. Assn., 199 Iowa 1311; Coyle v. Sawyer, 198 Iowa 1022; Travelers Ins. Co. v. Jackson, 201 Iowa 43.

Eeasons distinguishing the two lines of decisions are manifest and obvious. Under the former statutes, the court may, upon the failure or refusal of the party required to answer to do so, dismiss the petition or strike the pleading and enter judgment accordingly. From such order of dismissal and judgment the defeated party may appeal. The remedy in such ease is adequate and complete. We have said in several decisions involving the latter statute that, if the order requiring the production of books and papers is complied with, the error in the ruling, if any, will not be reviewed. No judgment from which an appeal may be taken can be entered in a proceeding for the production of books and papers. It is independent of the main action, and in a sense auxiliary thereto. The order requiring the production thereof is final, and, if challenged at all, to avail anything it must be before compliance is made therewith. Certiorari is the only remedy, therefore, by which it can be reviewed. The order in such case, to be reviewable on certiorari, must amount to something more than a mere ruling upon the admissibility of evidence or the production of books and papers necessary and jjroper for the examination of the petition. In other words, it must appear that the court has acted without jurisdiction or otherwise illegally, within the meaning of Section 12456, Code of 1924, and not merely erroneously.

The ruling complained of in this case amounted to nothing more than the overruling* of objections to the admissibility of evidence,' — indeed, the objections contemplated nothing more,— and is not, for the reasons already pointed out, therefore, reviewable on certiorari. Manifestly, if the court sought to compel obedience to its order complained of in this case by contempt, the remedy by certiorari to review the legality of such order would be available to plaintiff. In all other particulars, the right of appeal would be adequate. — Writ dismissed.

Faville, Vermilion, and Albert, JJ., concur.