Opinion
2 Div. 277.
February 9, 1950. Rehearing Denied March 9, 1950.
Walter P. Gewin and O. S. Burke, Greensboro, for petitioner.
Either party to a civil suit, in a court of law, may propound to his adversary interrogatories, with affidavit that answers thereto will be material testimony for him in the cause. Code 1940, Tit. 7, § 477 et seq. In all actions involving gaming or wagering contracts, interrogatories may be propounded as in other cases, but answers of the party cannot be used against him in any criminal prosecution. Code 1940, Tit. 9, § 50. The proper remedy to review the action of the trial court in refusing to require a party to a civil action at law to answer interrogatories is by petition for mandamus. Ex parte State ex rel. St. Peters M. Baptist Church, 212 Ala. 365, 102 So. 793; Ex parte State ex rel. Tuck, 217 Ala. 143, 115 So. 155; Ex parte Nolen, 223 Ala. 213, 135 So. 337; Ex parte Rowell, 248 Ala. 80, 26 So.2d 554; Ex parte Farrell, 234 Ala. 498, 175 So. 277. Unless the evidence sought by interrogatories is patently objectionable and inadmissible, mandamus will be awarded to require the trial court to grant a proper motion to require answers, and when it cannot be determined in advance whether such answers are admissible, it is the duty of the trial judge to require an answer to be made and pass upon admissibility when the answer is offered in evidence. McElroy, Law of Evi. 136; Ex parte Bahakel, 246 Ala. 527, 21 So.2d 619; Ex parte Farrell, supra; Ex parte Nolen, supra.
W. R. Withers, Greensboro, for respondent.
The purpose of interrogatories is the discovery of evidential matters known to the adverse party and not to the propounder. Ex parte Rowell, 248 Ala. 80, 26 So.2d 554; 27 C.J.S. Discovery, § 20, page 34. Information available to the propounder is not required to be disclosed by the adverse party by answers to interrogatories. Ex parte Bahakel, 246 Ala. 527, 21 So.2d 619. An adverse party is not required to disclose his evidence, nor is a fishing expedition allowed through interrogatories. Ex parte Nolen, 223 Ala. 213, 135 So. 337; Altman v. Barrett, 234 Ala. 234, 174 So. 293.
Petitioner, W. T. Wood, is the defendant in a pending action wherein Winston White, plaintiff, sued petitioner on the common counts (1) on an account stated, (2) for money loaned, and (3) for money had and received. The defendant in answer to these several counts of the complaint, in addition to the plea of the general issue, interposed several special pleas averring in substance that the demand or contract sued on was based in whole or in part on a gambling consideration.
Certain written interrogatories were propounded by the petitioner to the said plaintiff, as authorized by § 477 et seq., Title 7, Code 1940. Plaintiff declined to answer interrogatories 9, 13, 14, 21, 22, 23, 24, and 25 and defendant applied to the trial judge for an order requiring him to make answer. Upon consideration, the trial judge denied the motion and the petitioner has sought to review that ruling by the present proceeding. There is no question but that such procedure is proper to review the trial court's action. Ex parte Bahakel et al., 246 Ala. 527, 21 So.2d 619; Ex parte State ex rel. Tuck, 217 Ala. 143, 115 So. 155.
The answer of the respondent judge sets forth that the defendant's special pleas 7, 8, and 9, filed in the case, affirmatively show that all information sought by the interrogatories was within the particular knowledge of the defendant, or that otherwise the averments set out in said pleas could not have been made, and that respondent rested his action in denying the defendant's said motion as follows:
"b. Pleas 7, 8 and 9 affirmatively show all information sought by the interrogatories was in the particular knowledge of Defendant.
"c. The interrogatories constituted an attempt by the Defendant to make the Plaintiff disclose his evidence.
"d. The interrogatories propounded each sought information as to the consideration for the accounts sued on and if the consideration was a gambling one then this information was necessarily known to the Defendant and therefore said interrogatories were not in the nature of a discovery."
On a careful consideration, we have concluded the action of the trial court was proper.
The purpose of interrogatories is the discovery of evidential matters known to the adverse party and not to the propounder. Ex parte Rowell, 248 Ala. 80, 26 So.2d 554.
The adverse party is not required to disclose in his answer to the interrogatories propounded to him information equally available to the propounder. Ex parte Bahakel, supra.
Nor is the adverse party required to disclose his own evidence or the identity of his witnesses. Ex parte Nolen, 223 Ala. 213, 135 So. 337; Altman v. Barrett et al., 234 Ala. 234, 174 So. 293; Montgomery Light Traction Co. v. Harris, 197 Ala. 358, 72 So. 619.
Section 50, Title 9, Code 1940, providing that in actions brought for the recovery of money or property lost upon any game or wager, either party may be examined on interrogatories "as in other cases," in nowise impinges upon the general principles adverted to above, nor detracts from their pertinency to the instant case.
Guided by these principles, we have reached the conclusion that the action of the respondent should not be revised.
Writ denied.
FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur.