Weathersby v. Huddleston

The judgment of tho court was pronounced by Kino, J. The defendants, who are husband .and wife, are sued as the joint and several makers of a promissory note. The plaintiff annexed to 'his petition interrogatories, addressed to the wife, the object of which was to elicit from ‘her an acknowledgment of her signature, and that the consideration of the note was a separate debt due by herself. The prayer was that the interrogatories should be answered in open court, and, on motion of plaintiff’s counsel, a day was appointed by the court for that purpose; but of the time fixed she .received no notice. The interrogatories not having been answered on the day named were taken as confessed. A judgment was rendered against both of-the defendants insólido, from which they have appealed. When a party is required to answer interrogatories in open court, unless he be present at the trial or when the order is made, a day must be appointed for him to appear, and of that day'he must be notified,'before he can be considered in default, and the facts unanswered be deemed confessed. A different rule would expose parties to surprise, more particularly in cases when no appearance has been made, as occurred in the present instance. C. P. art 351. 2 La. 73. 7 La. 335. 10 La. 416. Spears v. Nugent, ante p. 11. No other testimony was offered in support of the claim against P. Huddleston, the wife. As to her, the judgment must’be reversed; and on the authority of the case of Fink, Executor, v. Martin, 1 Ann. Rep. 117, we will not render a judgment of non-suit, but remand the cause for further proceedings. The demand against Isaac Huddleston is fully proved; but it is objected that the-name in-which the plaintiff sues is George M. Weathersby, and that the judgment is rendered in favor of John M. Weathersby. This is clearly a clerical error, which may be corrected in this court. It istherefore ordered that-the judment of the District Court, as far as re-relates to the defendant, Polly Huddleston, be reversed, and that the cause, as to her, be remanded for further proceedings according to law. It is further ordered that, as regards Isaac Huddleston, said judgment be amended by rendering the same in favor of George M. 1%eathersby instead of John M. Weathersby; and, in other respects, that said judgment be affirmed ; the plaintiff paying the costs of this appeal.