Peters v. Randall

12 Teiss. 348, 1915 La. App. LEXIS 68

Opinions

His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Coui;t, as follows:

This is a claim for ¡attorney’s fees and moneys advanced for costs and expenses in obtaining for defendant a divorce from her first husband.

As the first attempt to enforce this claim judicially was made more than three years after the divorce proceedings ended, the defendant pleads the prescription of three years.

C. C., 3538.

It is shown that about the time of obtaining her divorce the defendant left the State, leaving, however, no fixed address where she might be found and no property within the State; that plaintiff had no knowledge of her whereabouts until he discovered that she had come into a certain inheritance which he immediatly seized.

It has repeatedly been held by the Supreme Court of this State that prescription runs in favor of a debtor who has left the State, but whose place of residence was known to the creditor.

Tbi-s is an affirmative pregnant with a negative. ' And the proposition that one citizen of this State may contract a debt towards another and discharge that debt by the simple process of betaking himself to parts unknown during the time necessary for prescription to run, is one which finds no support either in law or in equity.

Prescription operating a release from debt, being based upon the theory that the creditor “can only blame himself for not having taken his measures within the time directed by law,” C. C., 3550, it follows that it does not run when there are no measures allowed by law of which the creditor might avail himself. Contra non valentem agere non currit prescriptio.

And it is elementary that under the circumstances above set forth there were no measures which plaintiff might have taken to collect his debt at any earlier moment.

Pennoyer vs. Neff, 95 U. S., 714.