Young v. Adm'rs of McLemore , 3 Ala. 295 ( 1842 )

ORMOND, J.

The questions of law, arising in this case, grow out of a statute passed 23d December, 1837, the design of which, was to supersede the necessity of resorting to chancery, to obtain a discovery of facts, resting in the knowledge of a party to the suit. The act requires the Court to be satisfied of the materiality of the testimony sought to be obtained by “ the oath of the party filing the same or otherwise” and it would be strange, if greater credence should be given to the oath of an interested party,- than to that of an unbiased witness. It might indeed be questioned, whether any oath was necessary; but certainly the oath of the attorney of the plaintiff will satisfy the demands of the statute.

The first assignment of error, is well taken. The statute provides, “that if the party to whom such interrogatories shall be propounded, be defendant in the action, it may set aside his plea or pleas and give judgment against him by default.” The effect then of the contumacy of the defendant, is precisely the same as if after service of process, he had failed to appear and plead.' This would authorise the rendition of a judgment against him by default, and would in such a case as the present, be an admission that the plaintiff was entitled to some damages, the amount of which, could' only be ascertained by a jury; and although the plaintiff, in the absence of proof, would be entitled to nominal damages, the damages actually sustained can be ascertained only through the intervention of a jury. The statute which authorises the clerk to compute the damages in certain cases, does not apply to a case like the present. For this error, the judgment must be reversed, and the cause remanded.