Boswell v. Travis

Worden, J.

Action by the appellee against the appellants upon a note and mortgage. Judgment for the plaintiff.

The defendants filed interrogatories to be answered by the plaintiff

Upon the cause being called for trial, the defendants objected to the trial until the plaintiff had answered the interrogatories thus filed; but the Court overruled the objection, and ordered the trial to proceed. There was no evidence before the Court that the plaintiff was absent from the county, except that he was not present in Court. His attorneys offered to swear, but did not swear, that he was absent from the county. The case stands without proof of the presence or absence of the plaintiff, except that he was not present in Court.

W. F. Lane, for the appellants. . S. A. Huff, Z. Baird, and J. M. La Rue, for the appellee.

Under the statute of 1855 (Acts of 1855, p. 59), in the absence of the plaintiff, his failure to answer the interrogatories was no cause of continuance, without an- affidavit as prescribed by that act, and such affidavit was not filed. If the plaintiff was present, the.defendants having taken a rule against him to answer the interrogatories, should have proceeded to enforce the same as prescribed by the statute, and his failur'e to answer, in the absence of cause shown, was no ground for a continuance. Rice v. Derby, 7 Ind. R. 649 (1) .

Whether the plaintiff was present or absent, there was no error in the ruling of the Court.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.

See Cleveland v. Hughes, ante, 512.