79 So. 328 | La. | 1918
The relators filed suit and obtained judgment against the defendant railroad company in the justice of the peace court, for the value of a cow killed by a train. The defendant took a suspensive appeal to the district court, where the case remained more than five years without any proceeding being had or action taken in the prosecution of the suit or appeal.
The plaintiffs, appellees in the district court, Invoking the Act No. 107 of 1898, p. 155, took a rule upon the appellant to show cause why the appeal should not be dismissed. In answer to the rale, the appellant urged that, according to the terms of the statute, the appeal should not be dismissed, but the suit itself should be considered abandoned, and should therefore be dismissed. After trial of the rule, the district judge overruled the appellees’ motion to dismiss the appeal, and also the appellant’s demand to have the suit itself dismissed. The case is before us on a writ of certiorari issued at the instance of the plaintiffs, appellees in the district court, demanding merely that the appeal to that court be dismissed and the case remanded to the justice of the peace court for execution of the judgment of that court.
“If the plaintiff in this case, after having made his demand abandons or discontinues it, the interruption [of prescription] shall be considered as having never happened.”
The statute added this paragraph, viz.:
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”
To hold that the statute is authority for a district judge to dismiss an appeal, because of the lapse of five years without any steps being taken in the prosecution thereof, we would have to say that a defendant who appeals from a judgment rendered in a justice of the peace court becomes the plaintiff in the district court. As appeals from the justice of the peace court are tried de novo in the district court, a defendant cannot be regarded as plaintiff merely because he is appellant in the district court.
In support of their contention that an appellant is to be considered a plaintiff in the district court, even though he was defendant in the justice of the peace court, the relators rely upon the decision in State ex rel. Boone v. Edwards, Judge, 109 La. 210, 33 South. 199. The ruling in that case was merely that, under section 5 of Act No. 203 of 1898, the clerk of .the district court could require an appellant before that court to give security for costs, although the appellant' was defendant in the justice of the peace court. The basis of the ruling was that the statute did not restrict to plaintiffs the duty of furnishing bond for costs, but declared merely that the clerks of district courts might de
Be that as it may, article 100 of the Code of Practice declares that the plaintiff in a suit is the one who sues another for something that he says is due or belongs to him, and that the defendant is the one against whom the suit is brought.
Act No. 107 of 1898 was not intended to provide a cause or ground for dismissing an appeal. The object or purpose expressed in its title is merely “to amend and re-enact article 3519 of the Revised Civil Code of 1870.” That article has no reference whatever to causes for dismissing an appeal.
The ruling of the district court, refusing to dismiss the appeal, is affirmed.