Succession of de Marigny

22 La. Ann. 171

• Court: Supreme Court of Louisiana
• Decided: March 15, 1870
• Docket: No. 1928
• Status: Published

Opinions

Ludeling, C. J.

Tho claim of the opponent is resisted by the •executor of tho deceased on several grounds. The district court rejected tho claim, on the ground that it was prescribed by the lapse •of five years.

The opponent contends that prescription was interrupted on tho thirtieth of January, 1868, by the service of a citation on Mr. Marigny in person. The executor, on the other hand, claims that there was no interruption.

First — Because the citation addressed to Mr. B. de Marigny does not mention the place of his residence.

Second — It does not express the place where the office of the clerk of the court is held.

Third — -It is signed by the deputy clerk.

Fourth — The sheriff’s return shows that a copy of the citation, and not the original citation, was served on Mr. Marigny.

The only one of those objections which seems to merit notice is the first, that the defendant’s residence is not mentioned in the citation; the residence of the defendant is mentioned-in the petition, a copy whereof was served on the defendant in person, with tho citation, and a default was taken against the defendant before his death.' We think the citation sufficient to interrupt prescription. 12 La. 53-1; 17 La. 215; 10 R. 133, 119; 10' M. 155; 7 An. 240; C. P. 183, 184, 185, 186.

The executor further contends that even if the citation did interrupt prescription, the voluntary abandonment of his suit destroyed the effect of the citation. The cases cited by him establish that the dismissal of a suit for the non-appearance of the plaintiff is not an abandonment or voluntary discontinuance of the suit. 7 An. 523, Norwood v. Devall ; 14 An., Sheldon & Co. v. Reynolds. We think the principle is correctly decided in those cases. 13 An. 57; C. C. 3485.

liut even if Marigny had not been cited, prescription was interrupted by the citation of Avigno & Gordon, obligors in solido, with Marigny, in a suit on the notes now sued on. C. C. 3517.

It is therefore ordered and adjudged that the judgment of tho district court be reversed; that the plea of prescription be overruled, and that the case be remanded to bo proceeded with according to law. It is further ordered that the appellee pay the costs of this appeal.