*1 Board, Motty passage other land is not entitled to a to the Road across over rights Any may the land of land. is shorter than the route across defendants’ it have against adjoining Pine Road. other the defendants to the Island landowners for ac property this record shows that in cеss to its enclosed The evidence in must be deter police against parties.3 mined in juror of the ward in which a suit those brought dragline lands''áre located these Appeal of the Court of Motty property. and a íóád crew onto the reversed, and the Vermilion' School existenсe, road then in known as the against Alphe Board’s suit Broussard and Road, up Motty built and extended was .o,f all other defendants is dismissed as along origi- a trail that continued from the non-suit. Costs insofar as allowed law roadway nal to'and across the Ca- Warren plaintiff. are assessed рermanent bridge constructed A was nal.' SUMMERS, J., recused. of this was done over the canal. All work supervision police juror under funds, equip- parish personnel, and
with year Every 1959 that entire
ment. since graded and main-
stretch of road has parish police juror by the with
tained circum- equipment. these funds' and Under Plaintiff-Appellant, FOSTER, B. William we purpose of this suit stances and v. the conclusion сan find no fault with al., et Defendants- Rivers BREAUX light that R.S. the district court Appellees. Motty public road. Road is 48:491 the holding of also in accord with areWe No. 51948. failed Board court that the School
that 11, 1972. Dec. proving that the burden of sustain sought defendants’ passage it over right of to a most сonvenient outlet
land was language express road. Under the
public Board the School Article 700
of Civil Code routes would not be available Keaty, In Rockholt v. building not would subdivision restrictions why (1970), reasons one of the of the access construction fight passage plaintiffs’ for a claim an issue held that thalf was road. We land of the was over in another case since be decided jected that there it shown passage was was parties before us would and the evidence public shorter routes were permit us to make a determination. contended it Xet there roads. public the shorter roads access *3 1H8 III, Orleans, McCaleb, E. Howard New The here is: issue suit is filed plaintiff-appellant. improper for in a court within the prescriptive period, but service is made aft- Macy Kemp, III, Kemp, & Duncan S. it, may pre- er urge the defendant it is Hammond, defendant-appellee. for reason, if scribed for this suсh defendant previously
has object waived his improper the venue ? TATE, Justice. plaintiff
The
Foster’s suit was
18,
dismissed
alleged
May
The
slander occurred on
upon peremptory exception pleading pre-
1968,
the defendants
Ev-
when
Breaux and
scription.
927(1).
La.C.Civ.P. Art.
ans made certain statements about
dismissal was affirmed
the intermediate
plaintiff
Plaquemines
in
Parish.
(La.App.
e.,
court.
scriptive year), and Evans at domicile damages sues Foster for caused May (i. in LaFourche Parish on alleged an slander. Such an action e., days prescriptive year). four after jurious prescribes year. in one words La. Prescription Civ.Code Art. .3536. is inter filing, Tangipahoa theAt time of rupted by in a mere of suit an for this Parish was jurisdiction1 within suit, since both the defendants were scriptive period, only service parishes, in other La.C.Civ.P. domiciled court, incompetent citation filed in if wrongful Art. and since likewise the elsewhere, one of venue. La.R.S. occurred La.C.Civ.P. conduct (1960)2. 9:5801 expressly This held in the Art. “ ‘Competent : La.C.Civ.P. jurisdic- court’, ‘court of or venue. When the jurisdic- tion’, a court subject has means which demand is in an of, venue, prescrip- tion over the matter and is the in an *4 proper for, proceed- venue the action or tion is as to defendants ing.” by process.” (As served the service 1960, 31, 1).§ amended Acts No. 2. 9:5801: “All af- La.R.S. 421, Art a civil Under La.C.Civ.P. ac- fecting cause of action therein sued tion: “is commenced upon defendants, as all to presenting thе demand to a court interdicts, minors or the com- jurisdiction.” (Italics ours.) of a mencement civil action court of 1119 1120 appeal earlier in this proceeding, 238 So.2d tent upon to rule the merits of the demand 1st (La.App. Cir. 1970), which re- him. manded the case. The issue is not free from doubt. Hоwever, thisappeal cor However, considering that at the time
rectly that, Breaux, held insofar as the de Breaux filed his clinatory exception pleading- improper ven proper venue was as to him (due to this waived, ue was since it was prior not filed waiver of thе to claim it improp was default, preliminary to required by as La. er), that, we have purposes determined C.Civ.P. 928. The of im ruling upon this suit was proper venue was therefore overruled timely, since commenced (filed) a court him, and the case remanded. 238 So. competent jurisdiction at the time such 803, 2d 8063. plea was filed. that, (cid:127)The defendant contends under the We reach this conclusion for the follow- plain' statute, terms of the prescription was ing reasons: interrupted, since at the time of its fil- ing and of the service of citation the suit (1) jurisprudence, Under Louisiana in' a incompetent court of jurisdiction prescriptive strictly construed,- statutes are be'cause not (La.R.S. .permissible and of two constructions that 9:5801, quoted in pro- full in Footnote adopted “ which favors maintaining rather * ** vides : barring than the action. United Carbon the- demаnd is filed in Mississippi Corp., Co. v. River Fuel or in an La. (1956); Mansur v. venue, prescription is-interrupted as to the Abraham, La. 421 (1935). So. proc- defendant served the service of Cotton, Cf. also State v. Bros. Stewart hand, ess.”) 'On'the other La. (prescription So. 317 is (1939) contends that this suit was filed within a stricti juris). (at least аs Breaux), the ven- liberative proper, ue is due'to defendant Breaux’s pleaded may renounced, here it, object waiver either ex- of his .to and the Tangipahoa compe- pressly tacitly. is thus La.Civil Code Arts. The intermediate court affirmed the trial manded to trial of the judgment holding as to both defendants. 238 So. Evans, excepted since he 2d prior default, it nevertheless *5 1122 1121 Thus, party provi with therefore when a construe the 3461.4 9:5801, prescription the trial of plea provides of sion which draws a La.R.S. that court, thereby prescrip renounces the by hе the com and, having pleaded thus a originally (filing) tion mencement of civil action in a may it, re-urge competent not thereafter jurisdiction, abandoned court of to mean Brugier, interrupts pre v. McGloins filing it. Marionneaux that of the suit Reports if, also Succession (1881). Cf. at the time thе Harvey, filed, Harvey 44 La.Ann. prescription of is court v. is Brashear, ; Coon v. (1892) jurisdiction. present So. 410 of In the us, case, Similarly, therefore, it seems to since venue was tacitly right party plea renounces the where a to Breaux at the time he filed his' of plead (improper venue) filing a to circumstance of action in plea prescrip might a (thus) which validate
tion, permitted re-urge may to prescription he not therefore thus order the circumstance renounced him. prescription plea.
to validate his that, party We should note а where files Art. a prescription La.C.Civ.P. at Under a a time when the filing improper, civil action “is commenced is he does not waive his pleading, presenting prescribed a the demand a- that the suit is jurisdiction.” Mayeux Even if improper court of because of v. venue, improper Martin, is one (La.App.3d Cir. try court is the case for not objection to venue is
that reason- if . Thus, waived Arts. Further, La.C.Civ.P. although ordinarily decli- Code, purposes of the the decision natory objections by making are waived competent ju whether is one “of the court “apрearance”, La.C.Civ.P. never- Art. is not the situa risdiction” determined objections theless “the of other filing suit ., tion at but the time peremptory ... of the ex- com-, ception stead at the time the situation or an answer when re- therewith petency.of.the questioned. is lawj quired by general not constitute a does Art. “One can not 3460: La.Civ.Code “A tacit renunciation results from fact yet acquired, prescription gives presumption renounce which relin- quishment by pre- acquired it is lawful renounce acquired.” scription.” when once 3461: “Such La.Civ.Code express nunciation of either or tacit. had affirmed the trial (Italics ate court Art. 7.
appearance.” La.C.Civ.P.
Thus,
pleads
when a
ours.)
holding
Tangipahoa Parish
in an
scription dismissing
was an
venue and thus
right to
venue,
not waive the
also does
he
parish,
against Evans
in that
the suit
if he files his
question
judgment was to
the еffect of the affirmed
ground
simul
prescription on
par
in that
dismiss the suit
Evans
declinatory
on
attack
taneously with
longer competent
court was no
ish. That
*6
“required
law” to do
He is
the venue.
try
plea
prescription against the de
of
Younger, 206 La.
so, cf. State v.
Tangipahoa
against Evans as filed in
mand
otherwise he would
(1944), since
Cf.,
Muller,
Hayes v.
Parish.5
question
(If
right to
the venue.
waive his
trial court Decree as to Evans. an reasons, foregoing reverse However, remanded we it likewise For the trial and intermediate try judgments of the the suit to Evans the pleas of maintaining defendants’ Foot (see in the lower court courts this suit to Nevertheless, remand the intermedi- and we since note objection prеsent subject instance, it had to the if we reverse 5. Eor finally adjudged pre- ruling sustaining an such court was been improper Evans’ scription de- trial of the trial venue for the and remanded Tangipahoa mand. to the Evans demand proceeding there would trial'court further proceedings year con- more elapsed Since than one had be- expressed. sistent with the views here citation, fore service of pre- had action scribed on receipt the date of of service. Reversed and remanded. The effect of holding majori- McCALEB, J.,C. recused. ty is that the defendant is forced to first exception submit declinatory which does BARHAM, J., dissents with reasons. dispose perempto- case when his ry exception would cause dismissal of the BARHAM, (dissenting). Justice suit. The peremptory exception reads: “All R.S. 9:5801 could have successfully af- fеcting pleaded by defendant, the cause of action part therein sued of the time upon defendants, necessary compute prescriptive all peri- interdicts, lapse minors or od was the the com- from the of this mencement of a suit in civil action in a court jurisdiсtion to and in the service on the exception defendant. So the venue. upon is part based in declinatory demand in an incompetent court, or in improper vemie, prescrip- majority has held that the defendant tion is declinatory exception must first defendants *7 рrocess.” served the service of (Em- though or waive it even that waiver would phasis here and elsewhere supplied.) right plead peremptory eliminate the Un- der Code of exception. Civil Procedure Article 421 a a certainly Such result is harsh civil action “is commenсed of when the defendant has amade valid abso- a presenting the demand to a lute defense. Even if defendant had filed competent jurisdiction”. exceptions together, both ruling Code of on the Civil Procedure Article 5251(4) declinatory exception, lesser reads: which would “ ‘Competent first, court’ or ‘court of have had to be considered would jurisdiction’, means a court ju- any per- which has have barred consideration of the of, subject risdiction over the emptory matter and is exception by that court. After proper for, pro- the action ruling compe- or that it awas court without ceeding.” Since that proceeding tency matter, had not that court could not filed in proper a court of any venue when then consider other issues of the case. plead- defendant was Extending served with life of the cause of action ings, that court was not give plaintiff. advantage would no jurisdiction. or transfer of the case to the litigant still allow defendant to court would serves to to choose the prescription, procedural finally dispose vehicle will incurring
only penalty requiring аddi- with the matter without him to ex- dilatory tional costs of defense. haust tactics. This rule is sound logic, application, law and reasonable majority’s I can understand the While easily applied. understood and desire for strict construction of law of the rule the overall effect of I believe reason as well as the ex- fashioned here will in its extension work press language Code articles and the hardships value which far in excess of the statute, above, quoted dictates that defend- majority believes will flow from this peremptory exception ant’s attempt preserve maintain should be maintained. prescription. an action respectfully I The better rule would be one which dissent.