491 So. 2d 72 | La. Ct. App. | 1986
Lynn Shatoska (plaintiff) filed suit against Rollen Davis (defendant), styling
Then defendant filed with us a peremptory exception pleading liberative prescription of one year as provided in LSA-C.C. art. 3492. Basically, defendant contends that the one-year liberative prescription began to run at the time he was alleged to have refused in 1980 to return to plaintiff the movable property in question. This suit was filed on March 12, 1984.
Defendant has raised no assignment of error nor complained of irregularity or other error relative to the judgment entered by the trial court on November 19, 1984. Accordingly, the only issue presented for our review is whether or not plaintiff’s claim has prescribed.
Our review of the record and the applicable law convinces us that the libera-tive prescription involved in this case is not that provided by LSA-C.C. art. 3492, but that provided by LSA-C.C. art. 3499.
Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.
The record established that defendant was a gratuitous depositor. Accordingly, the ten-year personal action prescription was applicable. This has long been the law in this State as set forth in such old cases as Berard v. Boagni, 30 La.Ann. 1125 (1878); Cousins v. Kelsey, 33 La.Ann. 880 (1881); and Succession of Birba, 48 La.Ann. 655, 19 So. 575 (1896). A depository’s obligation prescribes ten years from the time he is in default for not restoring a deposit. It was proven that defendant refused to return questioned movable property in 1980. Suit was filed in 1984, so prescription has not run.
For the reasons set forth above, the judgment of the trial court is affirmed at defendant’s costs.
AFFIRMED.
. This is the successor article to LSA-C.C. art. 3544.