The court below held that the code, §§3810-8814, touching discovery at law, is not available in behalf of defendants against a plaintiff who is a non-resident of the county in which the suit is pending. We think this construction erroneous. The language of section 3810 is: “Discovery may-be had from the opposite party, either nominal or real, in any case pending in any court in this State.” And section 3811 says: “The party seeking the discovery may either subpoena the other party as a witness, or else file interrogatories and sue out a commission, as in cases provided for other witnesses.” The terms, “ as in cases provided for other witnesses,” qualify both the right to subpoena and the right to file interrogatories. As other witnesses cannot be brought by subpoena, if they are non-residents of the county in which the cause is pending, neither can a party to the suit be so brought. But it does not follow that such party may not be examined by interrogatories. On the contrary, by the general law applicable to witnesses, (code, §3877,) any witness whatever who resides out of the county may be so examined. So far from a non-resident plaintiff being exempt from the obligation to make discovery by answering interrogatories, it is the sole mode by which he can be called upon for discovery at law. A party residing in the *552county may perhaps be examined in either method,— that is, in person, at court (his attendance having been enforced by subpoena), or by interrogatories; but unless he does reside in the county, the only way to reach him is by interrogatories. That a non-resident party is amenable to this mode of- examination is clear, not only from the code, but from prior statutes on the subject. See Cobb’s Dig. pp. 465, 466, 467; Acts, 1853-4, pp. 50, 51.

The plaintiff having failed to answer, the court erred in overruling the motion for the continuance made by the defendants below based on that ground. The most moderate penalty for such default was the continuance asked for and denied.

Judgment reversed.