Lafleur Buick Co. v. Tatman

62 So. 2d 199, 1952 La. App. LEXIS 797

Opinion

DORÉ, Judge.

This is an appeal from a judgment by default in favor of the plaintiff and against the defendant for the sum of $356.21, with legal interest thereon from April S, 1952, based on a sworn account.

The defendant and appellant has pleaded in this Court the prescription of three years, contending that the record clearly discloses that the last purchase made by the defendant on the open account sued upon was for a period of more than three years.

In answer to the said plea of prescription, plaintiff and appellee has filed a motion contending that, in the lower court, he was not called upon to produce proof rebutting the running of prescription and asking, that the-case be remanded to show an interruption of prescription. Under the jurisprudence this must be done. See White v. Davis, 169 La. 101, 124 So. 186; Cook v. Crow, La.App., 194 So. 455; City Bank v. Johnson, 1 La.Ann. 246, and Hoffman v. Howell, 27 La.Ann. 304.

The judgment is therefore reversed, and the case is remanded to the court a qua to give the plaintiff opportunity to prove an interruption of prescription, the plaintiff-appellee to pay the costs of this appeal, all other Costs to await the final determination of the suit.