GEWIN, Circuit Judge:
In this discovery case the United States seeks to compel the appellees, its judgment debtors, to answer certain written interrogatories propounded under Rule 69(a), Fed.R.Civ.P., relating to their financial resources. The United States District Court for the Eastern District of Texas denied the government's motion to compel, and the government appeals. We reverse the judgment of the district court and remand the cause for further proceedings.
The appellees obtained a loan from the Small Business Administration in December 1961. The loan was evidenced by a promissory note bearing 3% interest. The appellees subsequently defaulted on the note and the government obtained a default judgment against them in the amount of $1,782.21 plus interest and costs. On November 5, 1965,
The district court denied the motion on the grounds that Rule 69(a) only allowed the taking of depositions and did not include the right to propound written interrogatories. The court noted in its letter opinion that there was an apparent conflict among the commentators on the question whether Rule 69(a) authorized the taking of written interrogatories, but concluded that, though such a procedure was desirable, relief would have to come by way of amendment to the rule.
The government argues on appeal first, that the order denying its motion to compel answers to the interrogatories is a final and appealable judgment under 28 U.S.C. § 1291 (1964), and second, that Rule 69(a)
The jurisdiction of the Courts of Appeals is limited under 28 U.S.C. § 1291 to appeals from final judgments of the district courts, and under 28 U.S.C. § 1292 to certain interlocutory orders. Traditionally, a final judgment has been defined as one which terminates the action and leaves nothing to be done but the ministerial functions necessary to execute the judgment. Gospel Army v. City of Los Angeles, 331 U.S. 543, 546,
The district court's order determined, and denied, the government's right to propound written interrogatories to the appellees. From the nature of the post-judgment relief sought, it is unlikely that there will be a subsequent judgment from which the government can appeal and thereby obtain review of this order in question.
We turn now to the merits of the case. Rule 69(a), Fed.R.Civ.P., provides that in aid of judgment or execution a judgment creditor may examine any person, including the judgment debtor, in the manner provided by the federal rules for taking depositions, or in the manner provided by state practice. The rule makes no reference to written interrogatories, but the government argues that the term "depositions" as used in Rule 69(a) refers to all the discovery procedures available under Rules 26 to 33. The argument is based mainly on the contention that Rule 69(a) was intended to afford a post-judgment method of securing information concerning the assets of judgment debtors and that to effectuate that intent the rule should be construed to allow the use of the inexpensive device of written interrogatories to secure that information.
There is a dearth of authority as to the issue before us. The only case which we have been able to find which deals with the types of discovery devices available under Rule 69(a) is concerned with the right to compel the production of documents. See M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co., 11 F.R.D. 172 (E.D.Pa.1951). The court there held that Rule 69(a) did not authorize the production of documents. That case is distinguishable and does not preclude the taking of interrogatories. See 3 Barron & Holtzoff, Federal Practice & Procedure § 1484, p. 532 (Wright ed. 1958). Thus we must determine whether the Rule limits post-judgment discovery to depositions on the basis of the language of the rule and the scant history dealing with its promulgation.
It would, therefore, appear that the use of the term depositions in the rule was not intended to limit post-judgment discovery to the taking of depositions under Rules 30 and 31. As Professor Moore points out, a limited construction of the rule would defeat its purpose. He asserts that the rule should be broadly and liberally interpreted. 7 Moore, Federal Practice ¶ 69.05 , pp. 2420-23 (1966).
Limiting the manner in which post-judgment discovery may be obtained solely to depositions would preclude discovery in situations where, as here, the judgment is small. In actual practice the taking of testimony under the rules providing for depositions is costly, time consuming, and in some circumstances complicated. Rule 31, for example, requires the use of an officer before whom the deposition is to be taken, the preparation of a record, and provides for cross and re-cross interrogatories. Rule 30 involves similar procedures. Where the judgment is small the cost of discovery under these rules is prohibitive. Written interrogatories, on the other hand, are simple and inexpensive. They afford a direct, efficient, and accurate means by which the judgment creditor can obtain the desired information. For the holder of a small judgment, they are the only practical means of discovering the assets of judgment debtors.
To deny a judgment creditor the right to utilize this discovery tool not only severely restricts the functional utility of the Rule, but it is also inconsistent with the general scheme of discovery practice in the federal courts. The discovery provisions of the Federal Rules of Civil Procedure were designed to afford the parties the right to obtain information pertinent to the pending controversy, and to effectuate that purpose they are to be liberally construed. That basic philosophy applies with equal force whether the information is sought in a pre-trial or in a post-judgment discovery proceeding. Giving consideration to all the foregoing factors we conclude that Rule 69(a) authorizes the government to propound written interrogatories to the appellees under Rule 33.
An essentially similar conclusion is also required under the provision of Rule 69(a) which permits the use of state discovery practice. Since it is clear that the applicable Texas rule allows the use of written interrogatories in aid of execution, the government is entitled to propound written interrogatories to the appellees in the manner provided by Rule 737. See Rule 737, Tex.R.Civ.P.; Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993 (1940); Roy Mitchell Contracting Co. v. Mueller Co., 326 S.W.2d 522 (Tex.Civ. App. — Texarkana 1959, writ ref'd. n. r. e).
The judgment is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.