Interrogatories filed by plaintiff were under the statute that provided for a discovery at law. The same, with such answers that were made, were parts of the record proper.
The case of a judgment or ruling on the answer of garnishee, made the subject of the earlier decisions of this court, is different from the instant case. In Jones v. Manier, 102 Ala. 676,15 So. 437, the consideration of this court was declined for the failure to make the same a part of the bill of exceptions; and in Bostwick Kirkland v. Beach, 18 Ala. 80, the declination was to render judgment against the garnishee on his answer, and it was rested on the fact that judgment against the "defendant in attachment" had not been rendered.
The later decisions recognize the right of the garnishee to file his answer in writing, and held that where so filed it was considered "as a part of the record of the lower court, without any reference to it in the judgment entry." First Nat. Bank v. Dimmick, 177 Ala. 571, 58 So. 658. All motions made in writing in the circuit court in any proceeding at law upon appeal become a part of the record. Gen. Acts 1915, p. 598; Stover v. State, 204 Ala. 311, 85 So. 393; Eutaw Ice, etc., Co. v. McGee, 17 Ala. App. 18, 81 So. 354. On the original hearing we had recourse to the interrogatories and answers on file, for an understanding of the rulings of the court on the motions, to which exceptions were reserved.
There was a failure to answer certain of the interrogatories indicated. Though they were numbered, they related apparently to the general subject inquired about. The seventh and eighth interrogatories called for two classes of information: (1) The private correspondence and reports (indicated) relating to the investigation of the fire on behalf of defendant by its agents; and (2) that of the settlement made by defendant and the assured.
In Culver, Adm'r, v. A. M. Ry. Co., 108 Ala. 330, 333, 334,18 So. 827, 830, this court said of the statutes in question (Code 1907, §§ 4049, 4057; Code 1886, §§ 2816-2820):
"Unsworn ex parte statements of persons not parties are merely hearsay and prima facie inadmissible. These reports made subsequent to the injury, were not competent as originalevidence for any purpose. The reason assigned for withholding the reports, may not have been sufficient, if the reportscontained competent evidence, but the withholding of statementswhich were not admissible as evidence, gave the plaintiff no right to move for a judgment by default." (Italics supplied.)
The declaration contained in Montgomery Light Traction Co. v. Harris, 197 Ala. 358, 359, 72 So. 619, was merely that interrogatories propounded to an adverse party in a civil suit must be pertinent to the issues or the matter in dispute between the parties to be of statutory requirement for answer. These authorities have application to the first class of documents inquired about.
Inspection of interrogatories 7 and 8 discloses that the same are material and pertinent to the issues being tried: (1) Whether there was liability on defendant's part; and (2) whether defendant had knowledge or notice of the insurance. Cain Lumber Co. v. Standard Dry Kiln Co., 108 Ala. 346,18 So. 882. Hence the pertinent inquiry of the nature of the payment, and contents of the receipt and release taken on the settlement with Collins. It was also competent to require a description of such lost or destroyed documents, if such had caused the failure to attach, and the substance of their contents. Potts v. Coleman, 86 Ala. 94, 100, 5 So. 780; Goodall-Brown Co. v. Ray, 168 Ala. 350, 53 So. 137. The evidence sought was of a declaration affecting defendant's liability for negligence, and of its notice, or the lack thereof, of insurance before settlement with Collins. The material and immaterial matters inquired about and designated in subdivision 7 are not so blended or interdependent as not to be separable in the preparation for and the making of answer under the statute to such of the interrogatories as are pertinent. Sparks v. J. S. Reeves Co., 165 Ala. 352,51 So. 574. Whether they are competent is a matter for the court, and not for the party. Southern Ry. Co. v. Bush,122 Ala. 472, 26 So. 168; L. N. R. R. Co. v. Hall, 91 Ala. 118,8 So. 371, 24 Am. St. Rep. 863; Calhoun v. Thompson,56 Ala. 166. *Page 239
There was no improper failure to answer interrogatories 2 and 3, inquiring of other trains passing Lawley at other times; this inquiry was not pertinent to the issue. Head v. Robinson, Norton Co., 191 Ala. 352, 67 So. 976.
Interrogatory 4 was answered at the trial in response to the order of the court. The date of service of a copy of the interrogatories on defendant is not indicated by this record. The motion for a continuance did not acquaint the trial court of that date under the provisions of section 4055 of the Code. It is true the provisions of the statute had for its purpose a discovery to aid in the preparation for the trial.
Interrogatory 5 should have been answered. The identity of the engine causing the fire should have been disclosed.
Interrogatory 9 was declined of answer "on advice of counsel." In Alabama, etc., Co. v. Heald, 154 Ala. 580, 595,45 So. 686, 690, this court said:
"The trial court erred in permitting the plaintiff to prove that immediately after the death of the intestate the defendant placed in the mine certain water pipes. Going v. Ala. Steel Wire Co., 141 Ala. 537, 37 So. 784; 1 Wigmore on Evidence, § 283."
The case of Going v. Ala. Steel Wire Co., 141 Ala. 537,551, 37 So. 784, 789, decided that there was no error in excluding evidence that —
"After the injury to plaintiff some other appliance * * * was used. As an independent fact to prove negligence in using the flat stick at the time of the accident the fact was not competent, and the witness had not testified on his direct examination to any fact or opinion which could form a predicate for this proposed evidence on his cross-examination."
This rule was followed in Bedgood v. T. R. Miller Mill. Co.,202 Ala. 299, 301, 80 So. 364; Burnwell Coal Co. v. Setzer,191 Ala. 398, 67 So. 604; Porter v. T. C. I. R. Co.,177 Ala. 406, 59 So. 255. There was no error in declining to answer that interrogatory.
We do not think the fact that the plaintiff moved the court to require the defendant to answer interrogatories 2, 3, 4, 5, 7, 8, and 9, and made the motion for a continuance, on the ground of the failure of the defendant to answer "said interrogatories," brought the ruling within the rule applied in Russell v. Bush, 196 Ala. 309, 71 So. 397. The statutory duty of the defendant was to fully and truly answer all proper interrogatories.
The rehearing is denied.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.