Goodall-Brown & Co. v. Ray , 168 Ala. 350 ( 1910 )

DOWDELL, C. J.

The final decree from which this appeal is taken was rendered upon the failure of the respondents to answer interrogatory No. 1, contained in interrogatories exhibited by the complainant to the respondents, under section 3135, Civ. Code 1907. This section reads as follows: “If the complainant wishes to examine the defendant touching the matters at issue, he may exhibit interrogatories to the defendant and call upon him to ansAver the same; and on his failure to ansAver them within such a time as may be prescribed by the register, the court may, by attachment, compel him to ansAver them, or may render a decree granting relief to the complainant, or may extend the time for such answers to be made.” Interrogatory No. 1, which the respondents declined to answer (to respond to), is as follows: “(1) Attach to your answers the original note and mortgage executed by complainant to A. J. Treadway, together Avith any written assignment thereof that wa.s made to defendants, and identify the same as exhibits to your answei’s.” That the note and mortgage, with any Avritten assignment thereof, were pertinent to the issues in the case, cannot be denied. That the court of chancery had the inherent power to compel the production of the same for evidential purposes — and this, independent of any statute — is not to be questioned. See note to the case of Lester v. People, 41 Am. St. Rep. 375-378.

Tlie complainant, under the issues, liad the right to interrogate the respondents, and to require them to answer whether, as a matter of fact, there had been any .transfer of the note and mortgage, and when, etc., and to require them to attach to their answers true copies of the note and mortgage and any written assignment thereof. Furthermore, he was entitled to a production of the originals for inspection, and to make and have copies of the same; and, as we have said, it was within the power of the chancery court to compel this. But this was not sought by interrogatory No. 1. By it the respondents were required to attach to their answers their original papers for an indefinite time, and as for that matter for all time, unless the respondents should apply for and obtain an order of the court to reclaim them. The complainant, appellee here, bases his claim of such a practice — to have the respondents’ original papers attached to their answers, and thereby indefinitely impounded in court — upon the above-quoted section of our Civil Code. In our opinion, a fair and reasonable interpretation of the statute does not warrant such conclusion, and we are unwilling to-sanction the practice resorted to here by the complainant.

This leads us to the further conclusion that the chancellor was in error in rendering a final decree on the merits of the case in favor of the complainant for the failure of the respondents to attach their original papers as -required by the interrogatory. We are not to be understood as holding that it was not within the power of the court, in addition to what we have intimated, to compel a production of the originals for a comparison with copies furnished, or temporarily at the trial, to be used in evidence.

The decree appealed from will be reversed, and the cause remanded, to proceed to a final determination along the lines indicated.

Reversed and remanded.

Mayfield, Sayre, and Evans, JJ., concur.