Derbes v. Décuir, 5 Rob. 491

5 Rob. 491 | La. | 1843

Martin, J.

The plaintiff is appellant from a judgment which rejects his claim against the defendant, on an alleged assumption of the latter of one-half of a sum due to the plaintiff bu-the 'defendant’s father-in-law. |

The general issue was pleaded. The counsel of the'plaintiff and appellant urges, that evidence of the defendant’s promise is found in the deposition of Césaire Delahoussaye ; and results from his neglect to answer the interrogatory of the plaintiff iiy4his respect.

As to the deposition of Delahoussaye, unsupported by corroborating circumstances, it is invalid, and affords no complete evidence, the demand being above the sum of five hundred dollars. The neglect to answer the interrogatory would have been sufficient, if the interrogatory had been required simply to be answered, but being required to be answered in open court, it was the duty of the plaintiff’s counsel to call on the court to appoint a day for that purpose. This was not done. Code of Practice, art. 351. In 2 La. 73, we held, that “if a party be ruled to answer interrogatories in open court, and his opponent does not move for, and fix a certain day on which to answer,- they will not be taken as confessed, if the party interrogated fail to answer.”

The proof of the defendant’s promise was clearly incomplete.

Judgjnent affirmed.