Leon LEVY v. Gene STELLY and Southern Pacific Railroad Company.
No. 5386.
Court of Appeal of Louisiana, Fourth Circuit.
February 20, 1973.
Rehearing Denied April 18, 1973.
277 So. 2d 194
Writ Refused June 21, 1973.
Chaffe, McCall, Phillips, Toler & Sarpy, Jarrell E. Godfrey, Jr., New Orleans, for defendants-appellees.
Before REDMANN, LEMMON and STOULIG, JJ.
LEMMON, Judge.
Plaintiff filed this tort action to recover damages sustained in an automobile accident. He has appealed from a judgment maintaining defendants’ exception of prescription.
1. The accident occurred on January 21, 1967.
2. Plaintiff filed suit in Jefferson Parish on September 27, 1967 (within one year of accident).
3. Plaintiff filed a second suit in the United States District Court on November 22, 1968 (more than one year after accident). This suit is still pending.
4. The first suit was transferred to Orleans Parish, where it was set for trial on the merits on October 28, 1969. Plaintiff sought an indefinite continuance, preferring to pursue the suit in Federal Court. When plaintiff refused a three week continuance, the trial court dismissed the suit without prejudice. Plaintiff attempted various procedures to have this dismissal reviewed or annulled, the final attempt ending in the denial of certiorari in January, 1972.
5. Plaintiff filed the present action on March 17, 1972.
The trial court maintained the exception of prescription on the basis of
“If the plaintiff in this case, after having made his demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the interruption is considered as never having happened.”
On appeal plaintiff contends that the original suit in State court interrupted prescription and that the subsequent suit in Federal court (filed during that interruption) was not retroactively prescribed by the application of
Prescription is a manner of discharging debts by the effect of time.
Prescription is interrupted by the filing of a suit, which provides the first notice to a debtor that a claim is being judicially asserted.
Using the time of filing as the test point, we observe that prescription was interrupted by the filing of the original suit, since the one year period provided by
Defendants argue, however, that
We construe
But in the case where a second suit is filed prior to abandonment, voluntary dismissal or failure to prosecute the original demand, the interruption provided by the first suit is still viable at the time of the filing of the second suit, and the interruption remains viable after the dismissal because of the pendency of the second suit. In the present case there was never a time after the one year anniversary date of the accident when a suit asserting plaintiff‘s cause of action against defendants was not pending in some court.
We conclude that defendants cannot use the facts existing at the time of the filing of their exception to dismiss an action which was not prescribed when the suit was filed. A suit not prescribed when filed cannot later become prescribed by the subsequent dismissal of a previous suit on the same cause of action.3
The judgment maintaining the exception of prescription is reversed, and the case is remanded for a trial on the merits.
Reversed and remanded.
STOULIG, Judge (dissenting).
I respectfully dissent because I am not in accord with the interpretation of
The majority opinion is based upon two premises: first, that the pending federal court action continues the interruption of the tolling of prescription, achieved by the prior dismissed state proceeding, so as to render the instant suit timely filed within the one-year prescriptive period governing tort actions; and second, that
The filing of the first suit in Jefferson Parish resulted in a legal interruption of the prescription of one year governing tort actions.1 Having arrested the running of prescription, the second action, though filed in the United States District Court more than one year after the occurrence of the accident, was nonetheless timely filed and not vulnerable to a plea of prescription. It was viable and legally efficacious solely because of the interruption of prescription occasioned by the timely filing of the initial proceeding in the state court. It therefore follows that save and except for the existence of the original suit then pending in the state court, the federal action would have been defenseless against a plea of prescription. Though the timeliness of the federal action was dependent upon the existence of a state court proceeding, the majority opinion concludes that the federal suit is sufficient, in itself, to sustain the timeliness of the instant action despite the dismissal of the original state court suit.
I find no statutory authority or jurisprudence to support this position. Article 3519 explicitly states that if a plaintiff
Under the very terms of Article 3519, the appellant by his failure to prosecute the cause of action has forfeited all of the benefits flowing from the interruption of prescription arising out of the timely institution of the first state court proceeding. One of these benefits was the ability to timely file a corresponding suit in the federal courts after the lapse of one year from the occurrence of the accident. The effect of this article is retroactive because it decrees that the interruption is considered as never having happened. As a consequence the prescriptive period of one year for tort actions had elapsed before suit was filed in the federal court.
Therefore the federal action cannot serve as the basis for continuing the interruption of a prescriptive period which has already lapsed. In view of plaintiff‘s failure to prosecute, the conclusion is inescapable that neither the original action in the state court nor the subsequent suit in the federal court interrupted the prescriptive period of one year. Since this suit was filed more than five years after the occurrence of the accident, an exception of prescription is well founded.
Further, I cannot concur with the majority in the conclusion that Article 3519 is to be applied prospectively to suits filed after plaintiff abandons, voluntarily dismisses, or fails to prosecute his demand. There is nothing in this article to indicate such an intent or to restrict its application to suits filed after the occurrence of any of the negating factors specified in the article.
They further reason that the purpose of this article (3519) is to prevent the plaintiff from voluntarily dismissing his suit and later refiling a second suit on the same cause of action after the original prescriptive period has elapsed. This interpretation unreasonably circumscribes the full import of the article by ignoring that it also involves instances of abandonment and failure to prosecute.
In my opinion the provisions of Article 3519 are clear. It decrees that upon the occurrence of any of the designated situations, all of which lie exclusively within the power of the plaintiff, the legal interruption of prescription (
I cannot subscribe to the proposition stated in the majority opinion that issues as to interruption of prescription are determined as of the time of the filing of the suit sought to be dismissed, and not as of the time of the filing of the exception. To do so would in effect be writing Article 3519 out of our Code.
Admittedly under Article 3518 the timely filing of suit legally interrupts the tolling
Counsel for appellant also maintained that dismissal “without prejudice” under Article 1672 allows the filing of another action in the state court or the prosecution of his pending suit in the federal court. This position may be well taken as it relates to a plea of res judicata, but not as it relates to prescription.
For these reasons I am of the opinion that the judgment of the trial court maintaining the exception of prescription should be affirmed.
ON APPLICATION FOR REHEARING
PER CURIAM.
On application for rehearing defendants cite Long v. Chailan, 196 La. 380, 199 So. 222 (1940) in support of their position. In the Long case plaintiffs abandoned their first suit by failing to take any steps in its prosecution for more than five years, although the suit was not dismissed until after the filing of another suit on the same cause of action. The court held that it was the abandonment, not the dismissal, which destroyed whatever effect the first suit had on the interruption of prescription.
In the present case the suit which interrupted prescription was active and viable when the second suit was filed.
While this application for rehearing was pending, another panel of this court held in Tug Alamo, Inc. v. Electronic Service, Inc., 275 So.2d 419, (La.App.4th Cir. 1973), involving similar circumstances:
“* * * art. 3519 operates prospectively and the question of whether a claim is prescribed must be decided according to the circumstances at the time of its filing (or, if appropriate, service). Thus a suit filed after the first suit is dismissed is filed at a time when the first suit‘s interruption is considered as never having occurred and therefore prescription has accrued (as in Adams v. Aetna Cas. Co., 1968, 252 La. 798, 214 So.2d 148). But a second suit filed before the first suit is dismissed is filed at a time when the interruption has occurred and therefore prescription has not accrued. And prescription cannot thereafter accrue, since the second suit itself interrupts (and suspends) the running of prescription.”
The application is denied.
Denied.
STOULIG, J., votes to grant.