141 So. 6 | La. | 1932
Lead Opinion
This case was before us in 1929 and was then remanded to the court below "to be proceeded with according to law." See
The law of this state provides:
Rev. Civ. Code, art.
In Bailey v. L. N.W. Ry. Co.,
"When it was enacted [by Act No. 274 of 1853, p. 250, now Rev. Civ. Code, art.
Again, in Fritz Jahncke, Inc., v. Fidelity Deposit Co. of Maryland,
"Article
In McElmoyle v. Cohen, 13 Pet. 312, 327, 10 L. Ed. 177, the Supreme Court of the United States said:
"It would be strange, if in the now well-understood rights of nations to organize their judicial tribunals, according to their notions of policy, it should be conceded to them in every other respect than that of prescribing the time within which suits shall be litigated in their courts."
Interpreting that decision in Roper v. Monroe Grocer Co.,
"It was decided in McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177, and is universally recognized, that a state may, without violating the full faith and credit clause, in limiting the time within which an action may be brought on a judgment rendered in another state, make the time shorter than the time allowed by the law of the state in which the judgment was rendered." *393
And we quoted from that case as follows:
"The plea of the statute of limitations, in an action instituted in one state on a judgment obtained in another state, is a plea to the remedy; and consequently, the lex fori must prevail in such a suit.
"Prescription is a thing of policy growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been, from a remote antiquity, fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction.
"There is no constitutional inhibition on the states, nor any clause in the constitution, from which it can be even plausibly inferred, that the states may not legislate upon the remedy, on suits on the judgments of other states, exclusive of all interference with their merits.
"A suit in a state of the United States, on a judgment obtained in the courts of another state must be brought within the period prescribed by the local law, the lex fori, or the suit will be barred."
Whereupon, we concluded and held that:
"In a suit brought in this state on a judgment rendered in another state, * * * it is the law of Louisiana that determines whether the right of action is barred by prescription."
As Louisiana has a right to determine when a foreign judgment shall become prescribed and no longer executory within its limits, it follows that it alone can determine under what circumstances such prescription may be avoided. And that is what Louisiana *394
has done by Rev. Civ. Code, art.
The judgment herein sought to be executed was never revived contradictorily with this defendant. It may (it seems) still be executed in the state of Texas under the laws of that state, owing to certain ex parte proceedings had in that state; but those ex parte proceedings are of no avail to extend the period of prescription here.
The trial judge overruled the plea of prescription herein filed by the defendant. We think he erred. The plea should have been sustained.
Dissenting Opinion
Under the laws of the state of Texas, a judgment prescribes in ten years from the date of its rendition as it does in this state. But in Texas, unlike it is in this state, a judgment becomes dormant, unless execution be issued from it within one year after its rendition. If execution so issue, although it be returned nulla bona, prescription does not run until ten years from that date, and it does not become dormant during those ten years. When a judgment becomes dormant in Texas, execution may not issue from it unless it be revived within the prescriptive *395 period, established in that state. It is not necessary to revive a judgment in Texas, if it may be done at all, when it has not become dormant.
Two executions were issued in Texas from the judgment at different periods. The judgment has not become dormant there. It is still in full force in that state. It seems to me that the issuing of execution in Texas should be treated as a revival of the judgment and given the same effect, on the issue before us, as a revival by petition and citation would be given to a revived judgment here.
It is true that it is ordinarily held that the effect of a revival, in the sense of a revival by petition and citation, is not only to cause prescription to be interrupted, but to cut off certain defenses which might have been urged, prior to the revival, against the judgment. However, one does not ordinarily sue to revive a judgment with the end in view of cutting off such defenses, which may be regarded as incidental effects of the revival; but this is done in some jurisdictions, to revive the judgment from a dormant condition, and, in this jurisdiction, to interrupt the course of prescription, for judgments do not become dormant here.
I concede that the prescription of judgments is governed by the law of the forum, but, as to how a judgment may be revived, I think, is governed by the law of the state where the judgment is rendered, and that, in Texas, an execution, duly issued, is a revival of the judgment in its practical aspects. I fail to see, if a different view be taken, how the full faith and credit clause of the Federal Constitution and the act of Congress *396 passed thereunder can be given the full force to which they are entitled. I therefore dissent.