39 La. Ann. 749 | La. | 1887
The opinion of the Court was delivered by
This is a suit to revive a judgment. The plea of ten years’ prescription in bar, having been sustained, the plaintiffs appeal.
The judgment rendered by the lower court was in favor of the defendant, and signed on the 3d of July, 1874.
On appeal, it was reversed on the 24th of December following, and judgment was rendered for $5000, with interest, in favor of plaintiffs.
On the 14th of January, 1885, the present action was brought to revive, and on the next day citation was served.
The district judge sustained the plea of prescription, and rejected the demand.
Counsel for plaintiffs insist very properly that the ten years began to run only on the day when the judgment in favor of plaintiffs became final and executory.
It appears, from the minutes of this Court, that within the six judicial days allowed, an application for a rehearing was filed, which was refused on the 20th of February, 1875.
The transcript of appeal in the present suit, does not show that this material fact was proved in the lower court. The burden was upon the plaintiffs to show that they had brought their action to revive within the ten years, after the judgment had become executory.
The contention that the judgment of the Supreme Court must be
By “rendition ” found in Article 3547 R. C. C. the Legislature meant tbe finality of the judgment, sought to be revived, whether by the signature of the district judge, or by the expiration of tbe last judicial day allowed to ask a rehearing, or the refusal of such rehearing.
Owing to plaintiff's failure to show that the suit was brought and citation served, within the delay, there was no initial point for the computation of the prescription and such omission could not justify a judgment sustaining the plea.
Dismissing the suit, would serve no useful purpose.
In furtherance of the ends of justice the case ought to be remanded.
It is, therefore, ordered and decreed that the judgment appealed from be reversed, and that this case be remanded to tbe lower court for further proceedings according to law, defendant to pay costs of appeal and those of the lower court, from tbe filing of tbe plea of prescription; costs to be subsequently incurred! to abide the result of tbe suit.
