166 So. 892 | La. Ct. App. | 1936
The petition herein, which was filed October 11, 1933, contains allegations, regarding the nature, kind, and amount of damages claimed, identical with those in the other case. It differs only to the extent that here allegations respecting defendant's fault and negligence are made and those relating to the cancellation of the lien are omitted.
Before answering, defendant filed pleas of prescription of one year and of res judicata and an exception of no cause or right of action, all of which were overruled after respective hearings.
Answer was filed, and, by agreement of counsel, this and the other case were consolidated for the purpose of trial.
After trial, judgment was rendered in this cause in plaintiff's favor for $1,200.
Defendant then filed a motion for a rehearing, which was granted. The case was again submitted, and the trial court rendered and signed a judgment sustaining defendant's plea of prescription of one year and dismissing plaintiff's suit at his cost. From this judgment plaintiff has appealed.
As the plea of prescription of one year was responsible for the dismissal of appellant's suit, we shall give first consideration to it. In this connection, it is to be noted that the damage complained of occurred prior to August 30, 1932, that the petition in the first or companion suit was filed May 30, 1933, and the exception of no cause of action tendered thereto was sustained, as to the claim for damages, on July 8, 1933, and that the petition in this suit was filed October 11, 1933, which was more than one year after the damage occurred.
Plaintiff's action herein is for damages caused to his property by the collapse of the reservoir constructed by defendant, and hence is one sounding in tort under the provisions of article
As this suit was filed on a date more than one year after the damages were sustained, the plea of prescription was properly sustained unless it be found that the prescription was interrupted by reason of the filing and pending of the other suit.
Defendant's counsel contends that such prescription was not so interrupted. His argument is that, in order for the institution of legal proceedings to effect an interruption, the petition therein must disclose a cause of action against the defendant. He *894 calls attention to the fact that plaintiff's first suit did not disclose a cause of action as is evidenced by the ruling of the trial court sustaining the exception hereinabove mentioned, and that plaintiff acquiesced in and accepted such ruling by agreeing that the only matter remaining for decision therein was with reference to the validity of the lien and by bringing this suit on the identical claim that was recited in the petition of the other case.
After careful consideration and study, we have reached the conclusion that the contention of defendant's counsel and the judgment of the trial court sustaining the plea of prescription are correct. Although there appears to be no jurisprudence in this state covering a situation identical with the one here presented, there are numerous cases holding that, where the original petition does not disclose a cause of action, an amended petition stating a cause of action comes too late if filed after the prescriptive period has run. In the case of De Bouchel v. Koss Construction Co. et al.,
The following pertinent holding is found in National Park Bank v. Concordia Land Timber Co.,
The case of Chennault v. Stovall et al., 160 So. 146, 147, decided by this court, involved a tort action in which a plea of prescription of one year was sustained. The original petition did not state a cause of action, and plaintiff sought to amend it after more than a year had expired from the occasion of the alleged damages. In the opinion of that case, we stated: "It seems clear that, if the original petition did not allege a cause of action, the amendment, to be of any avail, must necessarily disclose a new cause of action, and a new cause of action instituted after the prescription has accrued is barred."
It therefore may be said that, if an original petition which discloses no cause of action is insufficient to interrupt prescription so as to permit the filing, after the expiration of the applicable prescriptive period, of an amended petition stating a cause of action, certainly, by a much stronger reasoning, it is true that a like petition, which has been completely abandoned, cannot and will not suffice to interrupt the running of prescription, so that a new suit, disclosing a cause of action, may be instituted after the termination of the prescriptive period. Broadly speaking, the rule appears to be that the interruption of prescription by the filing of a suit is conditioned on a cause of action being set forth in the petition of such suit.
Plaintiff's counsel calls our attention to the provisions of Act No.
The act in no manner contradicts what we have herein said. On the contrary, by implication, the stating of a cause of action in the suit is essential. It provides, "shall interrupt all prescriptions affecting the cause of action therein sued upon." *895
Since we are of the opinion that the plea of prescription of one year was properly sustained, a discussion of the other exceptions and the merits in this case is unnecessary.
For the reasons herein given, the judgment is affirmed.