Interrogatories. Practice, Civil, Interrogatories, Default, Amendment. Judgment.
If, after an order of the Superior Court that a defendant within a certain time shall answer interrogatories propounded by the plaintiff under St. 1913, c. 815, or be defaulted, no order being made that each interrogatory should be answered categorically, the defendant files a document which purports to contain in a single answer and an annexed tabulated statement answers to fifty interrogatories, an order, allowing a motion to default the defendant because he had neglected to answer forty-nine of the interrogatories, is erroneous if it is entered before there has been an adjudication that the answers filed are imperfect and before the defendant has been given an opportunity to amend them, even if it be inferred that in allowing such a motion the judge found the answers to be insufficient.
The entry of a default is not the equivalent of a final judgment.
It is within the power of the Superior Court to remove a default at any time before final judgment.
It is within the power of the Superior Court to allow an amendment to the writ in an action at law after the entry of a default and before the final judgment.
RUGG, C. J.
This appeal presents a question of practice respecting answers to interrogatories. The plaintiff filed interrogatories under St. 1913, c. 815, section 3 whereof provides that "If, within ten days after such notice [of the filing thereof] . . . the party interrogated does not answer the interrogatories, the court shall, upon motion, order the party interrogated to answer such of the interrogatories as it finds proper." The defendant did not answer at all within the ten days, whereupon the court ordered the interrogatories answered within twenty days. There was no compliance with the order and thereupon an order was entered that the defendant be defaulted unless answers were filed within twenty days. On the day on which this order was entered the defendant filed two answers, the second of which stated that the "following schedule is supplied as answers to all of the succeeding interrogatories," and purported to contain a chronological statement of all transactions between the plaintiff and the defendant. Thereafter without further hearing upon the sufficiency of the answers, the defendant was defaulted and judgment ordered for the plaintiff.
Neither order was in terms that all the interrogatories, fifty-one in number, should be answered categorically. The question of the sufficiency of the answers was never specifically passed upon. It is to be inferred that by ordering the defendant defaulted they were found to be insufficient. But the defendant was given no opportunity to correct its answers and make them adequate. In this there was error. The case is within the authority of Fels v. Raymond, 139 Mass. 98. The point there settled was that after answers to interrogatories are filed, there must be an adjudication that the answers are imperfect and the interrogated party be given an opportunity to amend them, before nonsuit or default can be entered. In the particulars here involved, the present statute is not materially different from that then in force. A default might have been entered on failure of the defendant to comply with the first order in the case at bar; but that was not done. The defendant was given further opportunity and filed some answers. These should have been adjudged insufficient and the defendant given a chance to amend them before the case was ripe for default. This course in substance and effect was followed in Downing v. Downing, 227 Mass. 7, where, after having answered two interrogatories, the trustee was ordered to answer the remaining interrogatories. This was equivalent to an adjudication that the answers made were insufficient and that the other interrogatories must be answered. Advantage was not taken of the opportunity thus afforded, because only one of the remaining interrogatories was then answered. Manifestly this was trifling with the order of the court and a default was held to have been entered rightly. Nickerson v. Glines, 220 Mass. 333.
The entry of default was not the equivalent of a final judgment. Removal of default before final judgment is within the power of the court. Hurnanen v. Gardner Automobile Co. 225 Mass. 189. A default in an action at law is somewhat similar to the entry of a decree in equity that the bill be taken for confessed. Neither is a final disposition. Hutchins v. Nickerson, 212 Mass. 118.
The allowance of the plaintiff's motion to amend her writ, although after the default of the defendant was before the entry of judgment and therefore within the power of the court. West v. Platt, 124 Mass. 353, 355. Strout v. United Shoe Machinery Co. 215 Mass. 116. Day v. Mills, 213 Mass. 585, 587. Neszery v. Beard, 226 Mass. 332. Noyes v. Noyes, 224 Mass. 125, 135.
Default removed. Case to stand for further hearing.