Bv Dlnkelsplel. J ■>
SYLLABUS.
Aot No. 107 of the year 1898, whioh is an aot to amend and re-enaot Artlole 3519 of the Reglsed Civil Code of 1870.
Article 3519. "If the plaintiff, having made his demand, abandons or discontinues it, the interruption, shall he considered as having never happened. When the plaintiff having made his demand at any time.before obtaining final
Judgment allowes five years to elapse without having taken any steps to. the proseoutlon thereof, he shall be considered as having abandoned same."
In the case of the City of New Orleans vs the New Orleans Jockey Club, 129 La. P. 64, at page 65, the syllabus reads:
"Under aot 107 of 1898, a suit, is oonsldered abandoned when, at any time before obtaining final Judgment, the plaintiff allows five years to elapse without taking any steps towards its proseoutlon, and when suoh suit pending is in this Court on appeal-may be dismissed."
At pages 73 and 74, same oase, on motion to dismiss, the Court goes on to sayi
"In July 1304 the City of flew Orleans, Instituted the above entitled suit in the Civil Distriot Court, praying for the expropriation .of said property, and obtained an in~ [581]*581junction part} and thereafter, there was a judgment for defendant maintaining an exception of no oause of action, and dismissing the suit* Plaintiff appealed.
The transorlpt was filed In this Court on aovemher 9, 1904.
On December S, 1904 there was judgment overrulling a motion filed hy the defendant to dismiss the appeal and on Haroh 31, 1905 the oase was oalled and continued indefinitely; slnohe whloh time nothing further has been done. Defendant now moves that the appeal be dismissed on the ground that under aot 107 of 1898, the case is considered as having been legal abandoned. The/representatives of the defendant have appealed and give this Court to know and be Informed that they do not consent, but on the oontrary objeot to, and protest against the dismissal of the appeal herein, on the ground alleged.
The statute referred to in the motion amends and re-enacts 0. C. 3519, so as to make it reads Art. 3519. If the plaintiff in this case, after having made his demand abandons or discontinues it, the interruption shall be considered as never having happened. When the plaintiff having made his demand, shall, at any time before obtaining final judgment, allow five years to elapse without taking any steps towards the preseoution of his suit, he shall be considered as having abandoned same and at the order of x¡ut representative of the defendant, suit oan be dismissed.
In the case of Lockhart vs. Lockhart, to be found in the 113 La. P. 872, the syllabus reads:
"Under Act 107, P. 155, of 1898, amending and reenacting article 3519, Civil Code 1870, a suit is considered abandoned when, at any time before obtaining final j udgment plaintiff allowes five years to elapse without taking any steps in its proseoution, and on instructions from defendant [582]*582oan te strloken from the docket or dismissed,
Also see same oase at page 874.
In the 11 Court of Appeal page 288, State ex rel Yazoo & Mississippi Valley Railroad vs. Edrington, Judge, Court holds the same dootrine.
And In the oase of Teutonia L. &. B..Company vs Connell}:, the Court reiterates what had been heretofore decided in the like oases.
In the 130 La. page 791, Howcott vs/ Petit, the same doctrine was reiterated by the Court.
In the case of Barton vs. Burbank, the syllabus reads:
*fflf aot 107 of 1898, which provides that a plaintiff is to be considered to have abandoned suit when he allowes five years to elapse without taking any steps in its prose-oution could properly be applied in a oase where a seizure under executory prooess is stayed by injunction and the judg* delays his deoision for five years after the submission of the matter, such application would result in a judgment to the effeot that plaintiff in injunction had abandoned his suit, and hot plaintiff in seizure, the execution of whose judgment was enjoined, but in suoh oase the statute mentioned is inapplicable to either litigant, slnoe, having submitted their oase to the judge, they should not' be held responsible for his delay in the discharge of his duty} the idea of the statute being to hold a plaintiff responsible for dalay, attributable to his nonaotion in and failure to prosecute his suit up to the point at which the oourt is placed in a position to render judgment.¡[Authorities noted.). Judgment reversed.
[583]*583The issues involved, in this case present the following facts: The Aztec Land Company, Limited, asserts, that on October , 30th. 1903, they purchased with the right to he sent into possession thereof, by esparte writ of seizure and possession from the State of- Louisiana, thru 15. S. Frasee, State Auditor, acting by virtue and pursuant to the provisions of Act Ho. 80 of 1888, as amended by Aot 136 of 1896, the fol-lowing deso ripbed property. Then follows a description of the property which consists of four oertain lots of ground, in the Second District-of the City of Eew Orleans, square Ko.569, bounded by Bayou St. John, Dumaine, St. Philip and Genois Streets, the last lots measuring'131 feet front on Bayou St. John, by 150 feet in depth; more fully described in the Auditor's Deed, annexed to and made part of the petition.
That they desire to be sent into possession of said prop-erty by exparte writ of seizure and possession as provided by Section 5 of Act Fc. 80 of 1888; claiming the value of the property in question to be worth two hundred dclls-rs. Their prayer is that the ex parte writ of seizure end possession may be issued herein, direoted to the Civil Sheriff, commanding'-him to seize and place petitioner in possession of said property in pursuance to the provisions Of Section 5 of Aot Ho. 80 of 1888, and also prays for costs and general relief.
The deed of the Auditor is annexed to and made part of the petition.
This suit was filed May 34th, 1904. On the 14th of June of the same year, one John F. Dupuy alleges that he was served with a written notice notifying him that by virtue of a writ of seizure and possession directed by the Honorable, the Civil District Court for the [584]*584Parish of Orleans, he would."within the legal delays seise and take possession of the property aforesaid, claiming and alleging that he is not in possession of sny euoh lots, he is not in possession of any property in any such square as bounded by Eayou’St, John, Bumaine, St. Philip and Genois Streets, that there is no such square in Hew Orleans, and there is no street at St. Philip and Genois Streets. That he avers that he does own a certain piece of property front ing on Eayou St. John on the North west open bank adjoing-ing the property of Arthur Blanc, which property measures 11S feet on said Eayou St. John front, and 170 feet in depth on the side nearest the property of Arthur Blanc and 150 feet more or less also in depth on the other side,said piece of property forming a perfect triangle, but that said property is not bounded by any of the streets mentioned in the Sheriff's notice, and averring further that if for any reason which he does net at present ascertain it should he decided that the property of petitioner which he has described as the same 1,0 that claimed by the Aztec Land Company, then the same does not belong to the Aztec Land Company for the reason that the State-of Louisiana never had s title to it, that none óf the formalities prescribed by law ever having been fulfilled in. the seizure,, notice and advertisement and sale to the" State of Louisiana by the Tax Collector in 188E, and-for the 'further reason that said property was sold by-the Tax. Ccllect.br on the 13 th of May 1887, adjudicated to L,.S'. Hammond, whose titie is still of record, and he annexes notice of seizure, plan of the property claimed by him, his prayer is that an injunction issue herein prohibiting the Civil Sheriff from seizing and taking possession of a certain lot of ground situated in the Parish of Orleans on the northwest bank of Bayou St, John adjoining the property of Arthur Blanc, measuring US feet front on said Bayou, 170 feet in [585]*585depth on the aide nearest the property of said Arthur Blano and 150feet or more in depth on the other aide; that the Land Coup any through J.G.Emanuel, its President, he cited after due proceedings, the injunction he made perpetual, for costs ana for general relief.
The petition was sworn to hy Dupuy on the 11th of June, 1904, and the order of the Judge follows:-
"Let as within prayed for, the writ of injunction issue herein, on petitioner giving hond, conditioned, as the law directs, in the sum of one hundred dollars. New Orleans, June 14th, 1904. Signed: Bred B.- King Judge •acting for T.C.V'.Ellis, Judge.*
The hond for the amount required tsj the Court was duly executed on the same day and the injunction issued as prayed for.
On October 17th, 1204, the Aztec Land Co., Ltd., made defendants in the injunction suit filed by John F. Dupuy excepts to the petition in said suit, and shows that the same discloses no cause of action against exceptor, therefore prays the exception he maintained, suit dismissed, with costs, and for general relief.
Answer was filed following the .exceptions on the 31st of Hay, 1905, wherein the Land Company made defend ant in injunction denies all and singular the allegations thereof, except insofar as same may be admitted. Further answering avers that it purchased from the state of Louisiana, througK Frazee, Auditor of Public Accounts, acting by virtue of and pursuant to the provisions of Act No. 80 of 1888, as amended by Act No. 1S6 of 1896, on October 30th,' 1903, with theta SbíbSbx & rightto be sent in possession thereof by an ex parte writ of seizure and possession from this court; then follows the description of the property claimed in the original proceeding.
[586]*586Going on further answering, the Lund Company, alleges that said property was hid in and adjudicated to the State pff Louisiana for the deliquent state tax for the yearl883, with interest, penalties and costs, assessed in the name of Robert Simon, by Charles Cavanao, State Tax Collector for the Seoond or lower distriot of the City of Eew Orleans, on January 31st, 1885, at an offering thereof by said Tax Collector under acta Ho, 16 of 1888. The sale toot place at the front door of the building in which the Civil Distriot Court for the Parish of Orleans was held, and on February 4th, 1885, said tax collector appeared before A.A,Kerr, then a notary public of this oity, and executed an act of sale of said property to the State of Louisiana in the notarial form, which act of sale was registered in the Conveyance Office on May 38th, 1885, in book 133, folio 519.
That said property was forfeited to the State of Louisiana for the delinquent state taxes for the years'1871 to 1877 inclusive under the revenue laws of the years 1871 to 1877 respectively, and having been separate forfeitures for each of said years from 1871 to 1877 inclusive, as will appear from the lists of delinquent State tax payers, on file in the offioe of the auditor of Public accounts, Register of Conveyances and the Recorder of Mortgages, And that 'the taxesfor said years, or any of them, were not paid prior to said forfeitures, not has said property ever been redeemed from said forfeitures or dny of them. That respondent and its author in title had possession of said title for thirty years, under and by virtue of said tax sale and forfeiture, and that its title thereto has been quieted by the prescription of three years, as provided under Article 333 of the State Constitution of- 1888, And that respondent pleads said prescription in bar of said action. Prays that suit may be dismissed and the injunction dissolved, for. costs and for general relief.
[587]*587This matter rested from that time until June, 8th. 1915, when Pupuy. allege.s in his .supplemental and amended petition, " that at the time of his purchase of the property claimed by him herein, , he took possesion of the triangular piece of ground having a greater length on two of the line of the triangle, and a smaller amount on the other line, decribed in sale to petitioner. That said triangle is enolosed betv/een the fence exisiting at the time was transferred to him by the heirs of Robert Simon \r.d wife as the property described in the deed of sale, and your petitioner has been in contineous, uniterrupted and unequivocal possession thereof, ever since his purchase thereof, Ap-ril 30th. 1900. That his vendor has been in the same qualified possession-t thereof since 8th. September, 1859.
That in addition to the nullities avered to the title-of the Aztec Land Company and to the fact that your petition -er does not believe the Aztec Land Company's title to be to the same property, your petitioner avers, that said Land Company's title is null and void giving the following reasons.
1- That it was not in the power of the State Auditor to have sold said property unless same Vías readvertissd for sale by the State Tc.x Collector under Act 80 of 18da¿ that said advertisements and offer for sale never took place,
3- That it was the duty of the State Tax Collector if he had authority to make said sale to have sold the same to any person offering to pay the prioe fixed by the Legislature, and that your petitioner in order to avoid any possi-ble dispute and litigation, and simply for the purpose of protecting himself against litigation, did on the 18th. day of Pecember, 1899, deposit with John Brewster the sum of ^43,13, for the purchase of said property, and on the 14th. day of February 1900, said Brewster returned [588]*588the amount so deposited to petitionerbecause no deed could, be obtained from the Auditor; that previous to the said deposit in the hands of Brewster, your petitioner had agreed to purchase the property from the heirs of Robert Simon and wifee.
The prayer is that the supplemental and amended petition be. filed, that the Aztec Land Co. Limited, be cited hereto, and after due proceeding had that the Injuno tion herein issued he made perpetual so as to include the triangular space of ground measuring 341 - 5 - 4- front on Bayou St. John, 116-1-5- at the base of the triangle and 346--8-10- on the third line of the triangle, and for all general relief. The petition was sworn to on the 5th. of da June, 1905.
On the 8th. of November, following, 1905/ pro tunc, the Asteo Land Co. Limited, mc.de defendant in the Injunction herein filed an exoeption to the supplemental and amended petition of John F. Dupuy, plaintiff in injunction, and showed; that Duimy was estopped from questioning an exceptors title to the property in c ontest hy reason, of his conduct as setforth in the original and supplemental petition. That said supplemental and amended petition taken in conjunction witt the original petition discloses no cause of action against exceptor.
The prayer was, that the suit of John F. Dupuy be dismi seed at his costs and for general relief.
Following, October, 37th. 1905; motion was filed by the Attorney for the Company and Vfilliam H. Howoott, defendants in the injunction suit herein, and on suggesting to the Court, that the default agaist said Howoott taken herein, on October 35th. 1905. was wrongfully taken, as there was pending at the time and exoeption to the supplemental and amended petition of the plaintiff in injunction wbioh has never been tried or otherwise disposed of. Servio e was made on the 38th. October, 1905.
[589]*589In the same suit between the seme parties, prayomg for a confirmation , Dupuy represents-, that the Astee Land Co. on the 34th, of Kay, 1904*, obtained a writ of seizure and possession against the property owned by petitioner, that said cause was partialily tried, but no final judgment vías ever rendered on the merits of said cause. That petitioner remaining in possession of said property has been paying state and city 'faxes thereto regularly.
That on the 10th. October, 1913, the Aztec Land Co. thru its Attorney moved the Court to dismiss the injunction suit, on the ground that five yearB had expired and that the said suit had been abandoned which was not ¡true, that said judgment was signed on the same day, Ootober, 10th. 1913, That this judgment is null and void having.been rendered during vaoation of the Court. Further, that it was rendered without notice to your petitioner, and that same should be set aside and annulled. That in law the fiv e years of prese ription averred does not apply to this case it is only a matter of defenoe to the writ of seizure and possession; that the pres oriptibn does not begin to run as long as the writ of seizure'and possession remains in Court; that your petitioner has been in actual, corporal possesion of the property sought to be taken away from him and as long as his possession continues prese ript-ion is interrupted.
Alleging further,, that he acquired said property by Act under priv ate signature from Palmyra Simeon and oth-ers on the 30th. April,1900, that the property involv ed in the writ is described as four squares, lots o f ground and improvements thereto, in the second distriot of this City, in qquare 469, bounded by Bayou St. John, Dumaine, St. Philip and Genois Streets, the lots measuring, 131 feet on Bayou St. John, by 150 in depth. And further alleging, that the stress named Genois and St. Philip »»#-set-4pen7-a«d-4# [590]*590are not open, and if St. Philip andi/enoie Streets were open there was not as much depth as 150feet; alleging further, that even if the property as above set forth is intended to be Hoovered by the description mentioned^ in the writ of seizure and possession, then he avers that the State of Louisiana never had a title to same, none of the formalities prescribed by law having been fulfilled in the notice of sezure, advertisement and sale of the State by the State Tax Colieotofr in 1885.
He further avers, that said property, never belonged to Robert Simon to whom it was assessed, no proper noticed was ever served, ana the post offioe notice never gave originally that designation, and that the petition for injunction and the supplemental and amended petition are made part hereof. He pata prays that the original injunct -ion issued, prohibiting and enjoining the Civil Sheriff-from proceeding any further with the execution of the writ of seizure and possession issued by the Aztec Land Co,, that they be cited, and after due proceedings the exparte judgment rendered on 10th.' October, 1913, be declared null and void , that the title of the State of Louisiana to the property owned by petitioner be set aside and annul-led, and he prays for general .relief,.
This petition was sworn to on the 15th. day of January, 1915, by John F. Dupuy, and an order issued, as followa;-"Let as prayed for a writ of. injunction issue on petitioner giving bond in the sum of $100.00." Signed, T. C. V;. Ellis, Judge..
The bond was executed on 15th. January, Í915, and the writ of injunction, restraining and enjoining plaintiff was issued on the same day.
On the 35th. January, 1915, the Aztec Land Co. made defendant in the injunction suit filed herein by Dupuy, on January, 15th. 1915, answered the petition, and shoéd, [591]*591first, a general denial, then asserting, that on the 10th, October, 1913, the Aztec hand Co, thru its Attorney moved the Court to dismiss the injunction suit pending at the iiai e time between Bupuy and the .land Company, on the ground, that five years had expired , that nthis suit had been abandoned, and judgment was signed on the same day,October, 10th. 1913.
Further answering, respondent avers, that the injunoti -ion suit dismissed by said judgment disoloses the same cause of aotion as setforth in' the injunction suit filed January, 15th. 1915; the judgment in the former is con-clusive evidence of the abandonment of the oause, and said plaintiff in injunction has no longer any right of action in the premises, as to whioh fact said judgment is pleaded as res ajjudicata. Then goes on the reiterate, as in its original petition, all the ailegatione set forth, and finally, that this injunotion be vaoated, set aside, and the suit of Dupuy be dismissed at his cost, and that petitioner have judgment reoognizing it as the sole owner of the said herein above described property, in perfect ownership, and for costs and general relief. This petition was sworn to on the 33nd. January, 1915,
Again, we fihd a supplemental and amended petition of John F. Qipuy, filed 6th. January, 1916, under the same title. Alleging that on the 34th. May, 1914, judgment was rendered and signed by this Honorable Court, ordering a writ of seizure and possession to- issue against petitioner; that on the 14th. June, 1904, your petitioner enjoined the execution of said judgment; that on 10th. October, 1913, by exparte motion, judgment was rendered dismissing the injunction suit as abandoned. Then goes on to recite that ten years has elapsed since the rendition of said judgment, the same was not revived, therefore prescription of ten years having been aoqjiired, the writ of possession fell [592]*592fell with the prescription of the judgment. That the sue--pension of prescription ceased on the 34th. May, 1914. Alleging further, that the second injunction was sued out on 15th. January, 1915 after the acquisition of prescription, and he pleads the prescription of ten years.
He goes on further to allege, that he is in possession, a tax payer of the City of Hew Orleans and the State of Louisiana, and that the title executed by the State Auditor was in violation of the Act 136 of 1896, and if this is maintained the State of Louisiana would loose her taxes on the property sought to be recovered, which will tend to increase the burdens of your petitioner. That therefore he is entitled to set up the nullity of the deed made by the State Auditor to the Astee Land Company, Limited, being in direct violation of the terms of Act 136 of 1896, which requires the payment of all of the taxes, interest and costs due to the State of Louisiana as the fixed purchase price to be paidby the purchaser. Further, that the Auditor was without power to sell property adjudicated to the State unless same had been readvertised and no bid obtained. He therefore prays, that this supplemental petition be filed, the prescription of ten years be maintained, the Auditors title to the Aztec tend Company, Limited, to the property ic in litigation be declared null and wold, and further prays for general relief. This wes sworn to by Dupuy on the 5th. January, iSBB 1916.
We have thus detailed all the pleadings in this cause pending since 1904, both by way of petition for possession and the various writs of injunction which have issued.
The Court &† quo set aside the judgment by default in fevor of the Aztec Land Company, Limited, and we are mot at the threshold wit', the question, whether or not, under the Act of the Legislature of 1998, being Act iso. 107 of ifc .timt jcar, which Aot is an Act to ejaend esud reenact Article [593]*5933519 of the Revisea Civil node of 1870.
Article 3519;-
" If the ple.ir.tiff, after bavin, -.lie his "demand, abandons or discontinues it, the "interruption shall be considered as hav-"-ina sever happened.. V.hen the ¿.laintiff "having made his demand shall at any tine "before obtaining final judgment allow five "years to elapse without having taken any "steps in the prosecution thereof he shall "she be considered as having abandoned the "same".
This question has been adjudicated and passed upon by our Supreme Court in various oases, amongst them the case of the City of New Orleans -vs- New Orleans Jockey Club to be found in 129 La. page 64. At page 65 the syllabus reads;
" Under Act 107 of 1898 a suit is considered abandoned when, at any time before obtaining final judgment, the plaintiff allows five years to elapse without taking any steps in its prosecution, and, where sex such suit pending is in this Court on appeal may be dis--miused".
Ait pages 73 and 74, same case, On motion to dismiss, the Court goes on to say;-
" In July, 1904, the City of Eew Orleans inatufad instituted the above entitled suit in the Civil District Court, psaying for the expropriation of certain property, for park purposes, and obtained an injunction wtaxxshyx whereby the defendant company, which was alleged to be in possession, was inhibited from laying off race courses, destroying trees, digging wells, etc. thereon.The judge a quo made an or.der permitting the defendant to bond the injunction in part; and thereafter, there was a judgment for defendant, maintaining an exception of nc cause of action and dismissing the suit, and plaintiff appealed. [594]*594The transcript was filed in this court on November 9,1904. On Deoember 5, 1904, there w-s judgment, overruling a motion, filed by defendant, to dismiss the’ appealjand on March 31, 1905, the case was called and continued indefin-ately, since which nothing further has been done..
"Defendant now moves that the appeal be dismissed on the ground that under Act 107 of 1898 the cause is consider -ed as having been abandoned. The legal, representatives of the defendant have appeared and "give this bourt to know and be informed that they do not consent, but, on ’’ .e contrary, object to, and protest against, the dismissal of the appeal herein on the ¿round alleged.
The Statute referred to in the motion amends and re-enacts C. C, .55.12, sc as tc make it read:
" /’.rt. 3519. If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall he considered as never h aving happened. Shsnever the plaintiff, having made his demand, shall, at s any time oefore 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", "ppe-.l dismissed.
In the case of Lockhart vs. Lockhart, to be found in 113 La. Rep. p. 872, the syllabus reads." -
"Under act 107, p. 155, of 18SS, amending and re-enact ■30/rf -ing article 3§i5, Civ. Code 1370', a suit is considered abandoned when, at any time before obtaining final judg-ment, the plaintiff allows five years to elapee without taking any steps in it3 prosecution, and, at- the suggestion of any party in interest, it may properly be stricken from the doc ket ox dismissed."
At page 374, in the body of the. decision, the court goes on to say;-
" The amendment, therefore, consists of a distinct clauos declaring under what circumstances a suit shall [595]*595be considered abandoned. It iras, unnecessary to deolare under what oiroumstanceg a suit should be considered discontinued, beoause it Is oommonly under stood that suoh a «result is accomplished when the plaintiff appears in oourt and rxai voluntarily withdraws it;but the matter of abandonment was one of interruption, depending upon o'lroumstanaese and oonduot, and subjaot to no fised rule. It was therefore», as we think, the purpose of the General Assembly to substitute oertainty for uno ertainty, and, It being known when a suit-Is no longer pending In a oourt beoause of Its having been discontinued, to make it known when it is no longer pending in oourt because of its having been abandoned."
This oourt, in the 11th Oourt of Appeal, paga 388, in State ex rel Yazoo & Mississippi Valley Railroad versus Edrington, Judge, in its syllabus, says:-
"A step in the proseoution of a suit, within the meaning of Aot 107 of 1898, requires some formal move before the oourt intended to hasten judgment,"
Quoting the case of the City of New Orleans versus Jockey Club and Teutonia vs. Connelly, 133 La., and 63 Southern Reporter, page 63 . The Court goes on to say:-
"It is perfeotly olear that there oan be no uncertainty whatever, that a plaintiff had no intention of ah&x abondoning hie suit, if he had actually taken some formal steps before the court in oonneotion therewith, it follows that the whole uncertainty grew out'of things done informally and out of oourt. Hence it was, this species of uncertainty is what the Legislature meant to eliminate."
The case referred to by the Court of Appeal, Teutonia L & B C.o,, versus Connelly, the court reiterates what was previously decided in oases referred to in this opinion and affirms the same doctrine, qupting numerous authorities. In the 130 Louisiana, Howcott vs. Petit, [596]*596the same doctrine was announced.
The plea of prescription of five years under Act 107 of 1898, on the ground that after obtaining his order for possession the Aztec Land Company taking further steps in his suit is not well founded. The Act has no application to this case.
The order he has obtained was the equivalent of final judgment, just as the order of seizure issues in a petition for executory process. The Act applies to a plaintiff who having filed a suit and prays for judgment remains quiescent for five years before £k obtaining final judgment . The dcores for executory procesa Í3 30 far a judgment that an appeal lies from it. The only plaintiff in the case was the Aztec Land Company, whose petition was equivalent to an action to set a-’ide a tax sale for previous illegalities. In the 2nd Annual, page 490, Chambliss, Executor, vs. Atchison, the court goes on in the following language:
’’Interventions take place in suits but as an order of seizure is not a suit. All the proceedings allowed under it are summary, and parties are not permitted to emba -rass the ndministrati on of summary justice with matters enpui3 having no connection with the main issue; nor oan they inthat manner deprive the parties of the order of seizure x'rcri* to the right to contest their claims in the ordinary forum -vnd to have them tried before a jury. Courts of justice are open to t.ie intervenors in this case for the enforcement of their rights in a direct action, but this unusual complication of suits should be discouraged as tending to create endless confusion"
^ £0 that the motion of prescription of^can years in behalf of Eupuy and against the Aztec Land Co, to dismiss the Com--panv's case fbr the reasons given and the authorities cited, u an net p-revail; on the contrary, v-e decide, that the [597]*597injunction suit filed in 1904 originally lying dormant over ten years under the Aot 107 of 1898 must prevail. More than five years having elapsed from the time of the issuance of the original injunction and the trial of this cause in the court a quo. Also see the case of Barton vs. Burbank, 138 La. pages 997-999.
We have most carefully examined and. re-examined this cause; it was argued and briefed in this court in the latter part of the term; vacation ensued; t'he case was re-fixed, re-argued and elaborate and able briefs were filed in behalf of both parties in this contest.
If we decide on the merits of this controversy there can be no doubt that plaintiff in injunction has not made out his case; on the contrary all the facts and the la w are with the Aztec Land Co., Ltd.
It is therefore ordered adjudged and decreed that the judgment of the lower oourt maintaining the injunction and dismissing the suit of the Azteo Land Co., Ltd., is annulled, avoided and reversed,and that there now be judgment in favor of the Azteo Land Co., Ltd., as prayed for,' dismissing the injunction and quieting said oompany in its title to the land in question, with oosts.
Judgment reversed.