Lapène v. Richie , 15 La. Ann. 612 ( 1860 )

Land, J.

The plaintiffs instituted this suit against the defendant, Marie A. Riche, and her second husband, Pascal Favaron, for the recovery of two certain debts, on the ground that they had been contracted for, and enured to the benefit of the separate estate of Marie A. Riche, during her first marriage, or that she, after the death of her first husband, Francis Dury, converted the proceeds of the community property to her own use — the allegations of the plaintiffe’ petition leaving the cause of action doubtful.

On the trial below, judgment was given in favor of the plaintiffs, and the defendants were condemned to pay the debts demanded.

We cannot determine the case on its merits, because the interrogatories on facts and articles annexed to the plaintiffs’ petition, and propounded to Marie A. Riche, were taken for confessed, and used as evidence on the trial, without any order of court directing her to answer the same, within a given delay. This order and notice thereof, were necessary to enable the plaintiffs to lake the interrogatories for confessed, and to use the same as evidence, on the trial of the cause. See C. P. Art. 351, and Act of the 10th February, 1843, p. 14, amending Art. 352 ; Weathersley v. Huddleston, 2 An. 845 ; Spears v. Nugent, 2 An. 11. Without this evidence, the plaintiffs are not entitled to a judgment, even against the defendant, Marie A. Riche.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that this cause be remanded for further proceedings according to law, and that plaintiffs and appellees pay the costs of this appeal.