The final ruling of the state court at the trial of this case
being based upon a state of facts which put the state statute in
question entirely out of the case, no federal question remained for
the consideration of this Court.
This was an action commenced in the District Court of Bastrop
County, Texas, on January 31, 1899, by the defendants in error, as
plaintiffs, to recover damages sustained by the death of their
father, charged to have been occasioned through the negligence of
the railway company. Judgment having been rendered in favor of the
plaintiffs, it was taken on appeal to the Court of Civil Appeals
for the Third Supreme Judicial District of the State of Texas, and
by that court affirmed. An application to the supreme court of the
state for a writ of error having been denied, this writ of error
was sued out.
The case presents these facts: an Act of the legislature of the
State of Texas passed February 15, 1858, appearing in chapter 3,
title 40, Revised Statutes of 1895, in the following sections
reads:
"Article 2293. Either party to a suit may examine the opposing
party as a witness upon interrogatories filed in the cause, and
shall have the same process to obtain his testimony as in the case
of any other witness, and his examination shall be conducted, and
his testimony received, in the same manner, and according to the
same rules, which apply in the case of any other witness, subject
to the provisions of the succeeding articles of this chapter."
"Article 2294. It shall not be necessary to give notice of the
filing of the interrogatories, or to serve a copy thereof on the
adverse party, before a commission shall issue to take the answers
thereto; nor shall it be any objection to the interrogatories that
they are leading in their character. "
Page 179 U. S. 603
"Article 2295. A commission to take the answers of the party to
the interrogatories filed shall be issued by the clerk or justice,
and be executed and returned by any authorized officer as in other
cases."
"Article 2297. If the party interrogated refuses to answer, the
officer executing the commission shall certify such refusal, and
any interrogatory which the party refuses to answer, or which he
answers evasively, shall be taken as confessed."
On April 22, 1897, this amendment was made:
"Where either party to any suit is a corporation, neither party
thereto shall be permitted to take
ex parte depositions."
Texas General Laws 1897, p. 117.
Prior to the trial, an effort was made to take the testimony of
two of the plaintiffs, Sam Ferris and Frank Ferris, the one
fourteen years of age and the other twelve years of age.
Interrogatories were prepared by the defendant, and the clerk of
the court was designated as the officer to take the depositions. On
the trial, he testified in substance that he went to the place
where the boys were living with their uncle; that the uncle refused
to permit them to be questioned, though neither of the boys was
asked any question or declined to answer any interrogatory. He
further testifies that the uncle
"told me that he had seen no attorney; . . . that he would bring
the boys to town that afternoon to see their attorneys, and then,
if there was no objection, Judge Garwood (counsel for defendant)
could ask them what he wanted to."
The trial court overruled the motion of defendant to take the
interrogatories confessed as against the two plaintiffs.
MR. JUSTICE BREWER delivered the opinion of the Court.
This case is before us on a motion to dismiss or affirm. The
Page 179 U. S. 604
parties being citizens of the same state, the jurisdiction of
this Court is invoked on the alleged ground of a federal question.
It is contended that the amendment of April 22, 1897, which takes
away, in cases in which a corporation is a party on either side,
the right to preliminary
ex parte depositions, is in
conflict with the Fourteenth Amendment to the federal Constitution
inasmuch as it is unwarranted class legislation, and denies the
equal protection of the laws.
If we examine the opinion of the court of civil appeals or the
proceedings in the supreme court of the state, we find no reference
to that question. It either was not called to the attention of
those tribunals or was unnoticed by them. Turning to the record of
the trial in the district court, it appears that, when the
interrogatories were presented, together with the certificate of
the clerk that the two plaintiffs named had refused to answer, the
court ruled that the Act of April 22, 1897, was constitutional,
that therefore the defendant had no right to present such
interrogatories and overruled its motion that they be taken as
confessed, and that the defendant excepted upon the ground of a
conflict between such statute and the Fourteenth Amendment. It
further appears that thereupon the plaintiffs asked permission to
introduce testimony in respect to such refusal, and, the testimony
being produced, it was disclosed that the only refusal was that of
the uncle; that the boys not only did not decline to answer, but
were not even asked any of the interrogatories, and that the uncle
declared that he would take the boys to town that afternoon to
consult attorneys, and then, if there was no objection, the
defendant's counsel might ask them what he wished. Upon this
testimony, the court again overruled the motion of the defendant to
take the interrogatories as confessed.
While the court in the first instance expressed an opinion that
the act of 1897 was constitutional, yet its final ruling was based
upon the disclosure made by the testimony. That disclosure was of
facts which, under the original statute and irrespective of the
amendment of 1897, did not, according to the rulings of the supreme
court of the state, entitle the defendant to have the
interrogatories taken as confessed. In
Wofford v.
Page 179 U. S. 605
Farmer, 90 Tex. 651, it appeared that the notary,
acting for the defendants, without having given any previous
notice, came to the plaintiff and demanded that he should answer
the interrogatories; that the plaintiff refused to answer,
assigning as a reason that he wished to see his attorneys and that
it was necessary that he should examine some papers before giving
his answers. The supreme court sustained the action of the trial
court in declining to hold the interrogatories taken as confessed,
saying (p. 654):
"The statute gives a party to whom interrogatories are
propounded by his adversary the right, 'in answer to the questions
propounded, to state any matter connected with the cause and
pertinent to the issue to be tried.' Rev.Stat. art. 2296.
Consultation with his counsel is necessary to a judicious exercise
of this right. The privilege given by the statute to a party to a
suit to propound interrogatories to the opposite party for the
purpose of discovering evidence is an important one, but in our
opinion was not given for the purpose of entrapping his adversary,
and hence the latter should not be denied the right of consultation
with his attorney. A refusal to answer without giving a reasonable
time for such consultation should not be deemed contumacious, and a
certificate made under such circumstances should, upon a proper
motion, supported by proof of the facts, be suppressed.
Bounds
v. Little, 75 Tex. 316;
Robertson v. Melasky, 84 Tex.
559."
The cases cited in this quotation go to sustain the proposition
that the refusal of the party to answer must be willful and
contumacious. Such being the construction placed by the supreme
court of the state upon the statute, the trial court properly held
that the certificate of the officer to the refusal of the
plaintiffs was not conclusive, and that, upon the facts as
disclosed, the interrogatories should not be taken as confessed.
Now whatever may have been the opinion of the trial court as to the
validity of the act of 1897, no matter what may have been said in
the progress of the trial in respect to its validity, if the final
ruling was based upon a state of facts which put the act entirely
out of the case, it cannot be that we are called upon to consider
any expression of opinion concerning it, for such expression
Page 179 U. S. 606
was not necessary for the decision. Moot questions require no
answer.
This being the only matter suggested, and it appearing that the
federal question stated in the record calls for no decision,
judgment is
Affirmed.
