Bonnell v. Shepard , 2 Wis. 503 ( 1853 )

By the Court,

Whitoh, C. J.

The order appealed

from in this case, was the denial of a motion to dismiss the complainant’s hill of complaint. It appears that after the answer of the defendant was filed, the defendant exhibited interrogatories to the complainant, to he answered by him upon oath, pursuant to the Bevised Statutes. (JEiev. Stat., chap. 84, seo. 30.) Those interrogatories were in part answered as the statute prescribes; but a portion of them were excepted to as impertinent; the complainant declining to answer, under the advice of counsel, until the exception should be decided by the court.

One of the interrogatories he answers by saying that he makes the same answer to it that he has made to a previous one.

The failure to answer all the interrogatories within the time appointed by the court, the appellant claims, entitles him to have the bill of complaint dismissed, as the statute prescribes.

The section of the Bevised Statutes in question, is in these words : “The defendant in chancery, after he shall have filed his answer, may exhibit interrogatories to the complainant, which shall be answered by him upon oath; and if the complainant shall not answer such interrogatories within the time appointed by the court, he shall be in contempt, and his bill shall be dismissed with costs.”

The rales of the Circuit Courts prescribe no mode of practice under this statute ; and we think that, in the absence of any rule, it would be harsh and rigorous practice to dismiss the complainant’s bill for not answering the interrogatories, when, as in this case, the complainant has answered all of them, except such as he deemed impertinent, and has excepted to those. It would perhaps have been more in analogy to the rules of chancery practice, to have excepted to such of the interrogatories as were deemed impertinent, before answering any of them, and before the time was fixed by the court for answering. In such a case the exceptions could have been heard, and th e interrogatories settled, before any of them had been answered. But in the absence of any rule or any settled practice, we are not prepared to say that the course pursued by the complainant in this case, should be followed by the serious consequences prescribed by the statute for a failure to answer. The order of the Circuit Court must therefore be affirmed.