
    PROPER PRACTICE WITH REFERENCE TO INTERROGATORIES.
    Common Pleas Court of Wayne County.
    John Dye v. Morris L. Buchwalter et al.
    Decided, April 12, 1909.
    
      Interrogatories — Motion to Strilce out Does not Lie — But Interrogatories are Demurrable, 'When — Section 5099 — Pleading.
    1. Neither Section 5099, giving the right to attach, interrogatories to a pleading,- nor any other section of the statutes authorizes the striking out of interrogatories on motion.
    2. An answer which does not set. forth an issue nor indicate the character or substance of the defense tendered can not be made the subject of interrogatories; from which it follows that demurrer will lie in the absence of a showing of the pertinency of the' interrogatories to the answer.
    
      M. L. Spooner and G. Á. Hoover, for plaintiff.
    
      Robertson & Buchwalter and Weiser & Ross, contra.
   NICHOLAS, J.

Heard on motion to strike out' interrogatories.

This cause is for hearing upon a motion to strike out the interrogatories attached to the answer of defendant, Buchwalter, on the ground of'immateriality.

I have examined this question at some length and am of the opinion that this motion is not well taken. Section 5099, Revised Statutes, provides that:

“A party may annex to his pleading, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath,” etc.

The right to attach interrogatories to a pleading is based upon this section of the code, and I find nowhere in the code a provision authorizing the striking them out on motion.

It is true that Judge Bigger in Thomas v. Beebe, 5 N. P., 32, says that, “if impertinent interrogatories are attached, they will be stricken out by the court, ’ ’ but this was clearly obiter and not before the 'court. lie was deciding an entirely different question, and without saying whether these interrogatories should be stricken out on motion or how, he used this unfortunate language as above quoted. My own view is that these interrogatories can only be attached by a demurrer to each of them, and I find this view well expressed by Judge Pfleger in Mullins Co. v. Roofing Co., 5 N. P.—N. S., 1, in which he said:

“The motion to strike out the interrogatories applicable to the same subject should be controlled by the same principle, but it must be disposed of on the ground that it is not the province of a motion to strike out interrogatories. The proper remedy is by demurrer under the statute.”

The motion to strike out the interrogatories is therefore overruled.

On demurrer to interrogatories.

This cause is for hearing, up on a demurrer to the interrogatories propounded by the defendant to the plaintiff, and is attached to what the defendant pleases to call his answer. This so-called answer is of such vital importance to the decision of this demurrer that I quote it in full. It is as follows:

“Now comes the defendant, Morris L. Buchwalter, and says that he admits for the purposes of this suit that the allegations contained in the first paragraph of the plaintiff’s petition are true, and further says that for want of knowledge of the other averments of said petition he is unable to answer further until said plaintiff answers the interrogatories hereto annexed, and prays the court for leave to further answer in due time after said annexed interrogatories have been fully answered.”

The pleading might as well been christened something else, and merely naming such a paper an answer by no means an-wers the demand of our code that the defendant shall set forth his grounds of defense. No issue is tendered by this paper, nor is any intimation even given to the court to indicate the character or the substance of the defense of this defendant. This being true, how can this plaintiff be required at this time to answer interrogatories ?

Tbe propounding of interrogatories in a pleading lias not been much resorted to under our modern practice, consequently authorities in this state are not numerous, but we think they are sufficiently so to furnish all the light on this subject necessary.

Section 5099, Revised Statutes, of our code was intended to supply the purpose of actions in discovery at common law, some such proceeding being made necessary by the abolition of the distinction between actions at law and suits in chancery by our reformed proceeding, and our courts have uniformly held that this section should be construed in the light of the practice in chancery under the ancient form of procedure known as bills of discovery. In that proceeding, which was an independent one and in no wise connected with the action in which discovery was desired, the party seeking discovery was required to set forth so much of the facts as claimed by him as made the matter sought to be discovered pertinent to his claim in the other controversy, for that proceeding, like a proceeding under this statute, was not a mere fishing expedition, but was intended as a means of discovery, not of his-opponent’s cause of action or ground of defense, but of his own cause of action or ground of defense.

This being the true principle upon which the right of discovery depends, how can this court say that any interrogatory is necessary, pertinent or useful to this defendant when the court is not notified as to what that defense is to be?

If there was .any doubt in the mind of the court of this principle, Mr. .Nash in his most excellent work on Pleading and Practice (5th Ed.), page 248, would certainly remove such doubt, for he says:

“When the defendant files his answer then the pertinency of interrogatories are dependent upon the nature of the answer, and interrogatories may be propounded on the issue or issues thus made. ’ ’

The court therefore being unable to see the pertinency of any of these interrogatories to the defense of the defendant, sustains the demurrer to each’ of them, and exceptions are noted.  