| La. | Dec 15, 1860
Lead Opinion
The Bank of Orleans obtained, against John Rice, in the Commercial Court of New Orleans, judgment on the 11th December, 1840, for $2,802, with five per cent, interest from the 13th of May, 1840, four dollars costs of protest, and the costs of suit.
A writ of fi. fa. issued on the 28 th of December, 1840, and an alias on the 14th of November, 1842 ; the return on each was “no property found after legal demand from the parties.”
The pbove judgment was based on a protested note of James M. G. Cuddy, endorsed by Dr. John Rice, the payee, for $2,802, and the note was withdrawn, as also the protest, on the 3d September, 184T, by C. A. Morin, commissioner. A. Morin, W. C. C. Claiborne and M. Caruthers, commissioners of the Bank of Orleans, presented a petition to the Parish Court of New Orleans, stating “that they have some outstanding claims which they are desirous of selling from time to time, as they may deem most advantageous, and they pray your Honor that they may be authorized to do so.”
The following' order was made on this petition “ Let the commissioners be authorized to sell the outstanding claims, as within prayed for. — New Orleans, April 15th, 1846. — (Signed) Charles Maurian, Judge.”
It appears that under this order, Christy Cenas, auctioneers, formed lots of said outstanding claims, and sold the same on the 9th' of May, 1846. Lot No. 3 amounted to $8,929 93, and included “ a note of J. M. G. Cuddy, endorsed J. Rice, protested in 1840, for $2,802.” — “ Sold to A. A. Baudouin, agent, for $35.” On the 25th of May, 1846, W. C. C. Claiborne and C. A. Morin, commissioners, did, by virtue of the above adjudication, and for value received, transfer to A. A. Baudouin, agent, the above judgment, with subrogation “ to all the right, title and interest which the said commissioners had in the above judgment, No. 3040, at the time of the adjudication, and nothing more.”
Hr. John Rice died in New Orleans on the 26th of November, 1856, and his succession has been under administration since the loth of December, 1856. His real estate was appraised, in 1856, at $35,866. And according to the final account of the curator, filed 23d May, 1859, he has on hand $26,422 86.
The curator and heirs of John Rice oppose the prescription of ten years to the right of action, and the prescription of 10, 20 and 30 years, to the judgment itself.
The claim was admitted by the District Judge.
Apart from the presumption of the extinguishment of the judgment before its adjudication to A. A. Baudouin, which may reasonably be inferred from the ability of Rice to pay the same, and the insignificancy of the price of adjudication ; this being a personal action, under the decision in the case of Kemp v. The Heirs of Diana Cornelius, 14 An. 301, is prescribed by the lapse of ten years.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Dis ■ trict Oourt be reversed, and that the opposition of Mrs. A. A. Baudouin be rejected, with costs in both courts.
Rehearing
Same .Case — On a Re-heabins.
A re-hearing was granted in this case, from a conviction that the prescription of ten years, consecrated in the suit of Kemp v. Heirs of Cornelius, 14 An. 301, was erroneously applied in this cause, inasmuch as the same was not acquired at the inception of this action, May 31st, 1859, John Rice having only died November 26th, 1856.
The statute of limitation approved April 30th, 1853, (see Revised Statutes, p. 82, sec. 32,) provides that, “ hereafter all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgments.”
The appellants, assuming that before the passage of this statute, judgments were prescribed by thirty years, contend that the judgment against John Rice, which was rendered December 11th, 1840, is barred, by computing the time which preceded that change, according to the time then required, and adding it to the time which has elapsed since, according to the principle recognized by this court in the case of Goddard’s Heirs v. Urquhart, 6 La. 659" court="La." date_filed="1834-06-15" href="https://app.midpage.ai/document/goddards-heirs-v-urquhart-7158588?utm_source=webapp" opinion_id="7158588">6 La. 659.
We must bear in mind, that the Code does not provide specially for the prescription of judgments, and that our jurisprudence has studiously refrained from recognizing the application of even the longest prescription to domestic judgments. Louisiana State Bank v. Barrow et al., 2 An. 405 ; Deal & Co. v. Patterson, 12 An. 728, and the cases therein cited.
As to the merits, we think that justice demands that the case be remanded for further evidence, and more particularly, to afford to the plaintiff the opportunity of showing, as her counsel asserts in the application for a re-hoaring, that the claims of Herman (Wrn. Debuys), of Montgomery, and of Fisk, which are all included in the tableau herein opposed, are evidenced by judgments of old standing.
It is, therefore, adjudged and decreed, that the judgment heretofore rendered by us be set aside, as also the judgment of the District Court, and that the cause be remanded for a new trial, and proceedings according to law; the appellee to pay the costs of the appeal.
Concurrence Opinion
concurring. I think the facts of this case authorize the conclusion, that the debt has been paid. I prefer to rest my concurrence in the decree on this ground, as I am not satisfied that prescription has been acquired.