Sanders v. LukeSanders v. Luke
While playing “Robin Hood” together, plaintiff‘s 11 year old son was struck in the eye by an “arrow” (twig) firеd by defendant‘s boy, aged 10. After trial on the merits, the District Court dismissed plaintiff‘s suit. Defendant answers plaintiff‘s appeal, by re-urging his motion (overruled below) that the cause be dismissed for five years’ non-prоsecution; alternatively urging affirmance of the dismissal on the merits.
Counsel for defendant devoted his entire oral argument and the major portion of his brief to a scholarly discussion of the jurisprudence concerning abandonment by reason of five years’ non-prosecution,
“* * * Whenever thе 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. * * *”
This portion of
The legal question to be decidеd is whether the payment of the court costs for the transcript of evidence on August 28, 1951, interrupted the five years between the minute entry following conclusion of the trial on April 12, 19501 and the ex рarte order secured by plaintiff on August 22, 1955 assigning the case to the District Judge who had succeeded the trial judge and further fixing the time within which briefs were to be filed.2 No briefs were filed prior to this latter dаte, nor had the case ever been submitted to the trial court for decision.
Our learned brother below did not have the advantage of the persuasive opinions of our brethren of the Second Circuit in two recent cases which decided the identical or similar questions adversely to the contention of present plaintiff, namely Newson v. Bailey, 88 So.2d 391 and Reagor v. First National Life Insurance Co., 85 So.2d 312. Our Supreme Court denied writs of certiorari and review in the Reagor case on May 6, 1956.
The Reagor case held that the payment for and filing of the transcript of evidence on November 21, 1949, did not interrupt the five years elapsing between May 17, 1949 (when the last minute entry showed thаt the trial had concluded) and May 21, 1954 (when counsel for defendant filed a motion to dismiss on the ground of five years non-prosecution). The transcription of the evidence therein was completed on July 9, 1949.
Likewise, in the Newson case [88 So.2d 392] the Second Circuit, through Judge Hardy stated that the filing of the transcript of the evidence on February 3, 1956 “was not such an action as constituted an active step in the prosеcution of this suit“, within the meaning of
These recent decisions rely upon the Supreme Court case of Sliman v. Araguel, 196 La. 859, 200 So. 280, 281, where our Supreme Court with Mr. Justice Ponder as organ, after discussing the history and the legislative purpose of the 1898 amendment to
“The `step’ in the prosecution requires a formal move before the court intended to hasten judgment. A situation arising outside the record cannot be considered as a step taken in the prosecution of the suit. A step in the prosecution of a suit means something done in court towards the progress of the suit in court. Lips v. Royal Ins. Co., 149 La. 359, 89 So. 213.”
The Sliman case involved a long delay during which counsel for plaintiff and counsel
The Lips case held that a formal motion to withdraw the transcript for purposes of рreparing a brief was not an active step in the prosecution of a suit sufficient to interrupt the five years after which the suit is presumed to be abandoned within the meaning of
The above cases and the jurisprudence upon which they rely are authority for the proposition that to be a step in the prosecution of the suit so as to interrupt the running of the five years’ inaction after which a plaintiff is presumed to have abandoned his suit, the action taken must be a formal move before the Court, such as a motion to fix the case for trial, or filing some motion or pleading forwarding the progress of the suit. See authorities collected, Doyle, “The Abandonment of a Suit —Its Effect on Prescription“, 22 Tulane Law Review 504, 508-511; Note, “What Constitutes Abandonment of Suit“, 3 La. Law Review 835.
The cases relied upon by plaintiff actually are not contradictory of this holding. Jones v. American Bank & Trust Co., 175 La. 160, 143 So. 35 (on rehearing) involved a minute entry showing that the suit was placed on the call docket, although merely at the informal request of plaintiff‘s counsel. Watt v. Creppel, La.App.Orleans, 67 So.2d 341 invоlved a petition to substitute the original plaintiff‘s heirs as parties plaintiff due to the former‘s decease. Both of these cases involve actions of plaintiff‘s counsel, though in one сase informal, that resulted in formal action before or by the Court advancing the prosecution of the suit.
It perhaps should be added that the presumption of abandonment by five yeаrs inaction is not conclusive. Plaintiff is excused from application thereof if he can show that his failure to prosecute was due to circumstances beyond his control, Zatarain v. Portera, La.App.Orleans, 63 So.2d 477 (where bоth litigants were in the military service, and neither could have advanced the cause to trial). For instance, the plaintiff is not penalized if the delay is due to the prolonged considerаtion of the court to which the matter has been submitted and which is holding the case under advisement, Barton v. Burbank, 138 La. 997, 71 So. 134.
There is considerable force to plaintiff‘s arguments that the very fact that he paid monеy in court costs to secure the transcript of evidence conclusively indicates that at that time plaintiff did not intend to abandon the suit and rebuts a contrary presumption; that to secure the transcript was a step in the prosecution of the suit, since such transcript was necessary to prepare plaintiff‘s brief; and that the rules of the District Court herein required the рrepayment of the Court Reporter‘s fees before release of the transcript and submission of the record to the District Court, which also indicates that such payment of the Court Rеporter‘s fee was a necessary step to advance the suit.
Were this a matter of first impression, we would be inclined to accede to the persuasive force of these arguments, so ably urged. However, similar arguments were unsuccessfully made in the jurisprudence upon which we rely to reach our present decision that the payment of the Court Reportеr‘s fee is not a step in the prosecution of the suit within the meaning of the
For instance, in the present suit the Court Reporter completed her transcription and sent her bill in the amount of $41 therefor on May 1, 1950. It was finally paid on August 28, 1951, her letter of said date indicating that several installments had been paid during the interval. It is not inconceivable, were the act of making a partial payment of the Court Reporter‘s fees construed to be a step in the prosecution of the action, that claims could be preserved indefinately by payment of small installments of thе costs due, in contravention of the legislative purposes of
Since this Court has sustained defendant‘s motion to dismiss this suit on the ground of five years’ non-prosecution under
For the above and foregoing reasons, judgment is rendered dismissing plaintiff‘s suit.
Affirmed.