89 So. 213 | La. | 1921
The plaintiff in the present suit and one Abram J. Wolf brought exactly similar suits against the fire marshal and 19 fire insurance companies on allegation that these defendants had conspired together to libel and slander them. Excep.tions exactly similar were filed in the two suits. The counsel were the same. The Wolf suit was proceeded with. The present one was left in. statu quo; doubtless, to await the result of the other. The exceptions were sustained below and the suit dis
Act 107, of 1898, amending article 3519 of the Civil Code, reads:
“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapde without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”
In February, 1910, the suit was filed. In March, 1910, the exceptions w'ere filed, and in January, 1911. they were continued indefinitely. In March, 1912, the decision of this court in the Wolf suit was handed down. In May, 1912, and December, 1913, nine of the defendant insurance companies filed answers, with reserve of the exceptions. The •motion to dismiss the suit as having been abandoned was filed February 2, 1916. Except as here stated, no proceedings were taken in the present suit.
Counsel find analogy between the presem. case and those of Barton v. Burbank, 138 La. 997, 71 South. 134, where the case was kept under advisement for five .years, and Cotonio v. Richardson, 4 Court of Appeal 280, where the court had ordered the suit to await the result in another suit; but the delay in these cases was because of the act of the court, which can injure no one, whereas in the present case it was by the act of counsel in not prosecuting their suit.
When the answers were .filed in this present case the five years’ delay had not accrued, it did not exist; hence there was nothing that the defendants could have waived, even if they had been desirous, nay-anxious, to waive something. There was therefore no waiver.
Judgment affirmed.