Ex parte McLendon

WALKER, J.— The Code does not require that the court should dismiss the suit of a plaintiff, who fails to answer interrogatories propounded by his adversary within the time prescribed by law. It authorizes the court, either to attach the party, and compel him to answer, or to continue the cause, until full answers are made; or to direct a nonsuit, or judgment by default, to be entered. Code, § 2334. The order made at the spring term, 1857, that the plaintiff’s suit should stand dismissed, if he failed to answer the interrogatories in one hundred and twenty days, was not a final order. The matter still remained sub judice; and it was competent for the court, at a subsequent term, to modify or vacate that order.—Reese v. Billing, 9 Ala. 263. The order that the suit should stand dismissed at the end of one hundred and twenty days, in default of the answer, could not become effectual upon the occurrence of the contingency in vacation.—Ex parte Remson, 23 Ala. 25; Edwards v. Lewis, 18 Ala. 494; Reese v. Billing, supra. [278] Until the occurrence of the contingency was judicially ascertained at the next term of the court, the cause was in fieri, and it was competent for the court to modify or vacate the order. The mandamus is refused, at the costs of the petitioner.