C. Yale, Jr., & Co. v. J. G. Randle & Co.

23 La. Ann. 579 | La. | 1871

Ludeling, C. J.

This is a suit to revive a judgment obtained on the first of October, 1858. The petitidn was filed on the second of August, 1870, and on the same day service of “notice of the proceedings” was acknowledged for one of the defendants, and citation was-served on the other on the fourth of August, 1870. More than ten years had elapsed between the rendition of the judgment and the institution of this suit, and the judgment was extinguished by the prescription of ton years, which has been pleaded in this case, unless, in the interim the course of prescription had been interrupted by a citation to revive the judgment.

“Hereafter all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment; provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law to the defendant or his representatives, from the court which rendered tlie judgment,” etc. Acts of 1853, p. 250.

It is contended that inasmuch as the execution of the judgment was restrained by an injunction sued out by the defendants, prescription was suspended during the pendency of that suit, under the equitable maxim, “ contra non valenUm agere non currit jprescrijotio.” A sufficient answer to this is that prescription is the creature of positive law, which can not be overruled by a principle of equity. The law is mandatory, and courts are bound to obey it. No citation was issued to the defendants, in a suit to revive the judgment, until long after •the judgment had been extinguished by proscription.

It is therefore ordered and adjudged that the judgment of the court it qua be affirmed, with costs of appeal.