Wetta v. New Orleans & Carrollton Railroad

Citations

• 107 La. 383

Syllabus

<p>Syllabus.</p> <p>1. Plaintiff, after the defendant had failed to produce testimony, which plaintiff avers was taken in answer to interrogatories, assumed to supply the testimony in her own behalf which testimony defendant had (according to plaintiff’s averment) taken in its behalf and which plaintiff contends is favorable to her cause.</p> <p>2. After plaintiff had undertaken to have the witness examined under commission, continuances were obtained by plaintiff.</p> <p>3. It was not made evident that the commission was executed, and, in consequence, the court holds that defendant cannot, under the circumstances of the case, be held bound for the failure to produce the return of the commis: sion.</p> <p>é. Instead of insisting upon the return of the commission, plaintiff herself sought to have the testimony taken and failed to show proper diligence in this attempt. She was without right to return to the act of omission charged in matter of this testimony and made it a ground to reinstate her suit.</p> <p>5. Granting or refusing a commission is a matter within the discretion of the court of the first instance and unless arbitrarily granted or refused affords no ground to set aside a judgment of non-suit.</p>