3 La. Ann. 651 | La. | 1848
The judgment of the court was pronounced -by
The plaintiff, having first caused an execution to issue upon a judgment obtained against M. H. Dosson, proceeded under the 13th section of the act of 1839, to propound interrogatories to Mrs. N. C, Dosson, as garnishee, who excepted to answering them on the ground that, the plaintiff had not averred in his petition that she had in her possession property of the defendant, M. H. Dosson, or that she was indebted to Dosson; that the interrogatories were not pertinent to the legal issue between the parties, whether or not she was indebted to the defendant in execution, or had funds of his in her bands; and finally, she pleaded res judicata. The exception was sustained; md from a judgment dismissing the action, the plaintiff has appealed.
There is, in our opinion, no error in the judgment appealed from. The
It has been repeatedly held, that the proceedings in garnishment, authorized by the act of 1839, could not be converted to this purpose, .or substituted for a direct recoventory action. 1 Rob. 435. 17 La. 558.
The position assumed by the plaintiff that, the garnishee having failed to answer the interrogatories on the day for which she was cited to appear, they were to be considered as confessed, without a motion or ox'der of the court to that effect, and as precluding her from all further defence, is untenable. In the case of Sturgess v. Kendall, 2 An. 565, relied on, which was a case of attachment, the interrogatories were ordered to be taken as confessed, on a formal motion to that effect. Until interrogatories are taken by the court as confessions, the garnishee may appear and answer them, and plead all defences which he could have previously opposed to the proceedings against him.
Judgment affirmed.
