Opinion
1 Div. 214.
November 2, 1944.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
W. C. Taylor, of Mobile, for appellant.
The statute does not require interrogatories to be answered by an agent or servant when propounded to an individual. It does not permit answer by agent or servant except as to corporate plaintiff or defendant. Ex parte Pollard, 233 Ala. 335, 171 So. 628. Answers predicated on information obtained from others would be pure hearsay and not admissible as evidence, hence such information is not within the influence of the statute. Ex parte Pollard, supra. Interrogatories calling for mere hearsay evidence need not be answered. Culver v. Alabama Midland Ry. Co., 108 Ala. 330, 18 So. 827; Sibley v. Hutchison, 218 Ala. 440, 118 So. 638. The cause should not be dismissed simply because relator does not know the facts necessary for defendant to defend its case.
Pillans Cowley, of Mobile, for appellees.
Matter in the nature of testimony is not a part of the record proper and can be preserved for review only by a bill of exceptions. Carlisle v. Alabama G. S. R. Co., 166 Ala. 591, 52 So. 341; Truett v. Woodham, 98 Ala. 604, 13 So. 519; Jones v. Manier, 102 Ala. 676, 15 So. 437; Mobile, J. K. C. R. Co. v. Hawkins, 163 Ala. 565, 51 So. 37; Wiggins v. Witherington, 96 Ala. 535, 11 So. 539; Alabama G. S. R. Co. v. Bailey, 112 Ala. 167, 20 So. 313; Jones v. Anniston, 138 Ala. 199, 35 So. 112; Commissioners' Court of Chilton County v. State, 146 Ala. 439, 41 So. 463. The law regards the father as the head of the family, obliges him to provide for its support and education, and commits the children to his charge in preference to the claims of the mother or any other person, unless the right of the father be forfeited by misconduct or lost by misfortune. If the father be alive, of sound mind, not in prison and has not deserted his family, it is he who is bound to protect his children in their persons and rights; the mother is without that power. Ex parte Boaz, 31 Ala. 425; Neville v. Reed, 134 Ala. 317, 32 So. 659, 92 Am.St.Rep. 65; Cooley v. Stringfellow, 164 Ala. 460, 51 So. 321; Worthington v. Worthington, 215 Ala. 447, 111 So. 224; 46 C.J. 1221, § 4; Jones v. Buckley, 19 Ala. 604; Soper v. Igo, Walker Co., 121 Ky. 550, 89 S.W. 538, 1 L.R.A., N.S., 362, 28 Ky.Law Rep. 519, 123 Am.St.Rep. 212; Code 1940, Tit. 7, §§ 117, 118, 119; Tit. 52, § 302. Hearsay evidence of ancestry, family history and family tradition is admissible to establish pedigree. Cavin v. Cavin, 237 Ala. 185, 185 So. 741; Greenl.Evi., 15th Ed., § 103; 1 Elliott, Evi., 435, § 321; 1 Phillips, Evi., 4th Amer. Ed., 238; 2 Starkie, Evi., 7th Amer.Ed., part 1, 833; Landers v. Hayes, 196 Ala. 533, 72 So. 106; Jarvis v. State, 220 Ala. 501, 126 So. 127; Sheffield Iron Corporation v. Dennis, 204 Ala. 530, 86 So. 467; Henry v. White, 224 Ala. 427, 140 So. 391; Mitchell v. McGuire, 244 Ala. 73, 12 So.2d 180.
As stated on former appeal ( 244 Ala. 467, 14 So.2d 372), "This is a petition for mandamus by the State of Alabama, on the relation of Alice Everett, as the mother of Mary Katherine Everett, Ola Jeanette Everett, William Lavelle Everett, and Charles Ray Everett, minors, instituted in the circuit court of Mobile County to require the board of school commissioners of Mobile County to admit relator's children of school age to the Satsuma public school for white children. They had been denied admittance on the ground that they were 'colored children.' "
After the cause was reversed and remanded the trial court, on motion of respondents, again dismissed relator's petition because of her failure or refusal to answer interrogatories numbered 13, 14, 15 and 18, propounded to relator by respondents. The interrogatories and the answers made are as follows:
"Thirteenth Interrogatory:
"The said John Everett, Sr., generally known as John Everett, was the son of Flora Reed, also known as Tante (or Tauntie) Reed, was he not?"
"I do not know."
"Fourteenth Interrogatory:
"Flora Reed, also known as Tante (or Tauntie) Reed, was the daughter of Eliza Reed, was she not?"
"I do not know."
"Fifteenth Interrogatory:
"Eliza Reed was the daughter of Daniel Reed and Rose Reed, was she not?"
"I do not know."
"Eighteenth Interrogatory:
"You, your husband Ed Everett, and your four children named in your petition in this mandamus proceeding, all live together in the family home, do you not? Your said husband maintains and supports his family, does he not; including the four children named in your present petition for mandamus?"
"Relator declines to answer the eighteenth interrogatory unless required to do so by the court on the grounds that the question calls for testimony that is irrelevant, incompetent and immaterial."
The interrogatories filed by the respondents were under the statute that provides for a discovery at law. Title 7, § 477 et seq., Code of 1940. The same, with such answers that were made, are part of the record proper, and are to be considered in determining the propriety of the trial court's action in dismissing relator's petition, although there is no bill of exceptions. Collins v. Mobile Ohio R. R. Co., 210 Ala. 234, 97 So. 631. The case of Carlisle v. A. G. S. R. Co., 166 Ala. 591, 52 So. 341, cited by appellee, is not to the contrary.
Appellee insists that the answer to interrogatory 18 is material for the reason that if the father of the minor children be living, and be not disqualified by statute, he, and not the mother, must institute the proceeding.
In cases of this sort the pupil is the real party in interest, and the writ may be sued out by the pupil, or, it may be sued out by the parents, or either of them, or by one standing in loco parentis. 39 A.L.R. 1022, notes; Independent Order of Odd Fellows of W. Va. v. Board of Education, 90 W. Va. 8, 110 S.E. 440, 48 A.L.R. 1092. See, also, Hughes v. Outlaw et al., 197 Ala. 452, 73 So. 16, Ann.Cas.1918C, 872. For aught appearing, the information sought by interrogatory 18 is not material.
As framed interrogatories 13, 14 and 15 call for the personal knowledge of the relator. In answer she states that she does not know. True, the questions concern pedigree. But if the relator does not know, of her own knowledge, the pedigree inquired about she cannot answer the interrogatories propounded. Conceivably, she does not know, and her petition cannot be dismissed for failure to answer, or answering that she does not know.
The trial court erroneously dismissed the petition, and the cause must be reversed and remanded. It is so ordered.
Reversed and remanded.
GARDNER, C. J., and THOMAS, BROWN, and STAKELY, JJ., concur.