COMPTON ET ALS. vs. PEARCE, 7 La. 333

Martin, J., delivered the opinion of the court. A single question is presented to the court in this case, viz: whether a party who propounds interrogatories, and requires them to be answered in open court, but neglects to apply to the judge to have a day named on which they are to be answered, waives his right to have them taken pro confesso, if they be not answered. This question was solved in the affirmative, in the case of Stewart vs. Carlin, 2 La. Reports, 72.

The only difference which exists between that case, and the present is, that the prayer in the first for the interrogatories to be answered in open court, was not acted upon by the court, while in the case before us, the court ordered the interrogatories to be answered. It appears to the court, that the difference does not authorise a distinction. Either party has the right of having his interrogatories answered in open court, and in his presence, if he requires it. No order of court is required to entitle him to a right which the law gives him absolutely.

The obligation of the party to whom the interrogatories are propounded to answer them in open court, is not increased by the order. It is, therefore, clear, that a useless order cannot distinguish the case in which it is made, from one in which it is not made. The counsel of the appellant have, however, requested us to reconsider the decision in the case cited, as it stands alone as a solitary one.

He has urged upon the court, that the Code of Practice, art. 351, requires, indeed that the interrogatorios which are required to be answered in open court, should be answered on the day appointed to that effect by the judge, but it does not make it the duty of the party interrogating to provoke the appointment of the day. He has insisted that it is the duty of the party who is required to answer, tp provoke such an appointment, which he considers is made for the convenience of the party called on to answer.

The _ Code quires^the3answerto he made ■when, both parties are in court, wer Ts for athe ty'^proTOkinf It" he should take the means ro quired by law, fixed.aTC lUe day As the Code requires that the answers shall be made at a thus when both, parties are present in court, it appears to this court that the convenience of neither is to be consulted 3 exclusively. The answer is for the benefit of the party interrogating, otherwise he would not require it.

If it be for aud he has an interest to obtain it, it is but fair he should take the means required by law to obtain it. . 7 , . . .. . ~ Phis court on a reconsideration of the case of Stewart vs. Carlin, sees no reason to be dissatisfied with the decision then made, and we do not think the District Court erred, in deciding in conformity with it. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.