Plaintiffs sue the defendants on a balance of account. To their petition they attach interrogatories to be answered by Flannery, “under oath and within the legal delays.” The order issued as prayed for. Citation, with the service of the interrogatories and the order thereon, was served on Flannery on the second of August, 1872.

On the fifth of November, 1872, on motion of plaintiffs’ counsel, and on their showing to the court that the defendants, although duly cited, have failed to answer the interrogatories propounded to them within the legal delay; it was ordered that the interrogatories be taken for confessed, and that judgment be. rendered against them for the sum claimed. Defendants appeal.

No answer had been filed by the defendants; no judgment by default had been entered against them. There was, then, no issue joined when final judgment was rendered. Without issue joined the court was incompetent to pronounce judgment. The fact that one of the defendants did not answer interrogatories “within the legal delays,” does not join issue with plaintiffs’ demand.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the case be remanded to the lower court, to be proceeded in according to law.