Givens v. Southern Express Co.

Citations

• 106 Miss. 834
• 64 So. 737

Syllabus

<p>1. Discovert. Statutory provisions. Code 1906, section 1938. Construction. Time to answer interrogations. Plea.</p> <p>Code 1906, section 1938, providing that “if the testimony of a party to the suit who resides out of the state be desired by the adverse party, interrogations to him may be filed in the clerk’s office, and a copy thereof with notice of filing, shall be given the party, or his attorney or solicitor; and if he fails to answer such interrogations within a reasonable time, his plea shall be dismissed, if he be plaintiff or complainant, and if he be defendant, his plea or answer may be taken off the files and judgment by default entered, or the bill be taken as confessed,” may be remedial in one sense, but the penalty imposed upon the defaulting party is radical, and there should be a manifest violation of its terms before a court would be justified in inflicting the penalty.</p> <p>2. Same.</p> <p>Under this statute the cause must be at issue before it can be said that default was made in answering interrogations, and there is no default where defendant’s demurrer was properly sustained and sixty days given plaintiff to amend his declaration.</p> <p>3. Same.</p> <p>Nor was there any default under this statute to answer interrogations where a motion, made by defendant under Code 1906, section 940, to require plaintiff to give security for cost was pending and undisposed of.</p>