Blanchin v. Pickett

21 La. Ann. 680 | La. | 1869

Howell, J.

The defendants are sued as owners of a steamboat lor the amount of an account. The defense is a general denial, with a special denial by one of tbe defendant's, T.C. Anderson, of his ownership/and by another tliat he notified one of the plaintiffs not to give credit to the said steamboat as he would hot' be' responsible !for the debt, and they all plead the prescription of one, two, three, four find five years.

By an amended petition interrogatories on facts and articles were propounded to all tlie defendants, wliieb, on tlie day of trial, were taken .as confessed, except as to defendant Anderson, and upon the introduction of further evidence, judgment was rendered against the other defendants, who have appealed.

The prescriptions pleaded do not apply, as the account is not open, hut closed by the written approval of C..C. Pickett, tho captain of the boat, and is prescribed by ton years. 14 A.,654; 20 A. 116.

It is objected that the interrogatories were erroneously taken as confessed, because—

First — There was no order of court to answer. This was not necessary, as tho defendants were not required to answer in opcii court. 11 A. 173 5 14 L. 260; 10 L. 546 ; 7 L.522.

Secondly — Because a failure, by one of the defendants, Hudspeth, sued as administrator, to answer, could not hind the estate. We know of no law to sustain this position. It has been hold that interrogatories, may he propounded to an executor (6 M. 730), and an administrator is no moro exempt. Tlie latter is presumed to know the property belonging to tho estate administered by him.

Thirdly — Because the service, on two of tho defendants, Pitro and Pickett, was constructive and not personal, and as to them, the judgment is erroneous.

■The service upon each was made in conformity to article 189, C. P. A personal service is not required. The case in 2 A. page 11, does not hold that personal service is necessary, hut that a special notice of the order (where one is required), and of the day fixed for answering, must he given to the party interrogated, and that a notice to answer on the day of trial, without specifying tho day, is insufficient. This authority does not apply to the ease at bar.

We find no error in the judgment.

It is therefore ordered that the judgment of the mstrict Court he affirmed with costs.

Rehearing refused.