Foster v. Breaux

• Decision Date: 11 December 1972
• Docket Number: No. 51948,51948
• Citation: 263 La. 1112,270 So.2d 526
• Parties: William B. FOSTER, Plaintiff-Appellant, v. Rivers BREAUX et al., Defendants-Appellees.
• Court: Louisiana Supreme Court

Page 526

270 So.2d 526

263 La. 1112

William B. FOSTER, Plaintiff-Appellant, v. Rivers BREAUX et al., Defendants-Appellees.

No. 51948.

Supreme Court of Louisiana.

Dec. 11, 1972.

E. Howard McCaleb, III, New Orleans, for plaintiff-appellant.

Macy & Kemp, Duncan S. Kemp, III, Hammond, for defendant-appellee.

TATE, Justice.

The plaintiff Foster's suit was dismissed upon peremptory exception pleading prescription. La.C.Civ.P. Art. 927(1). The dismissal was affirmed by the intermediate court. 253 So.2d 569 (La.App.1st Cir. 1971). We granted certiorari to review this holding. 260 La. 278, 255 So.2d 768 (1972). See also earlier appeal, 238 So.2d 803 (La.App.1st Cir. 1970).

Foster sues for damages caused by an alleged slander. Such an action for injurious words prescribes in one year. La.Civ.Code Art. 3536. Prescription is interrupted by mere Filing of suit in a court of competent jurisdiction ¹ within the prescriptive period, but only by the Service of citation if filed in an incompetent court, including one of improper venue. La.R.S. 9:5801 (1960) ².

The issue here is: When a suit is filed in a court of improper venue within the prescriptive period, but service is made after it, may the defendant urge it is prescribed for this reason, if such defendant has previously waived his right to object to the venue as improper?

The alleged slander occurred on May 18, 1968, when the defendants Breaux and Evans made certain statements about the plaintiff in Plaquemines Parish. The plaintiff filed suit on May 16, 1969 (i.e., two days Before prescription accrued) in Tangipahoa Parish. Breaux was served at his domicile in Terrebonne Parish on May 22, 1969 (i.e., three days After the prescriptive year), and Evans at his domicile in LaFourche Parish on May 23, 1969 (i.e., four days After the prescriptive year).

At the time of filing, Tangipahoa Parish was an improper venue for this suit, since both of the defendants were domiciled in other parishes, La.C.Civ.P. Art. 42, and since likewise the wrongful conduct occurred elsewhere, La.C.Civ.P. Art. 74. This was expressly held in the earlier appeal in this proceeding, 238 So.2d 803 (La.App.1st Cir. 1970), which remanded the case.

However, this earlier appeal correctly held that, insofar as Breaux, the declinatory exception pleading improper venue was waived, since it was not filed prior to preliminary default, as required by La.C.Civ.P. Art. 928. The exception of improper venue was therefore overruled as to him, and the case remanded. 238 So.2d 803, 806 ³.

The defendant contends that, under the plain terms of the statute, prescription was not interrupted, since at the time of its filing and of the service of citation the suit was in a court of incompetent jurisdiction because not the proper venue. (La.R.S 9:5801, quoted in full in Footnote 2, provides: '* * * When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.') On the other hand, the plaintiff contends that this suit was filed within a court of competent jurisdiction (at least as to the defendant Breaux), because the venue Is proper, due to the defendant Breaux's waiver of his right to object to, it, and the Tangipahoa Parish court is thus competent to rule upon the merits of the demand against him.

The issue is not free from doubt. However, considering that at the time Breaux filed his plea of prescription the venue was proper as to him (due to this waiver of the right to claim it was improper), we have determined that, for purposes of ruling upon prescription, this suit was timely, since commenced (filed) in a court of competent jurisdiction at the time such plea was filed.

We reach this conclusion for the following reasons:

(1) Under Louisiana jurisprudence, prescriptive statutes are strictly construed, and of two permissible constructions that is adopted which favors maintaining rather than barring the action. United Carbon Co. v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956); Mansur v. Abraham, 183 La. 633, 164 So. 421 (1935). Cf. also State v. Stewart Bros. Cotton, 193 La. 16, 190 So. 317 (1939) (prescription is stricti juris).

(2) The liberative prescription here pleaded may be renounced, either expressly or tacitly. La.Civil Code Arts. 3460, 3461. ⁴ Thus, when a party withdraws a plea of prescription in the trial court, he thereby renounces the prescription originally pleaded and, having thus abandoned it, may not thereafter re-urge it. Marionneaux v. Brugier, 1 McGloins Reports 257 (1881). Cf. also Succession of Harvey v. Harvey, 44 La.Ann. 80, 10 So. 410 (1892); Coon v. Brashear, 7 La. 265 (1834). Similarly, it seems to us, where a party tacitly renounces the right to plead a circumstance (improper venue) which might validate a plea of prescription, he may not be permitted to re-urge the circumstance thus renounced in order to validate his prescription plea.

(3) Under La.C.Civ.P. Art. 421, a civil action 'is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction.' Even if the court is one of improper venue, the court is not incompetent to try the case for that reason if the objection to venue is waived. La.C.Civ.P. Arts. 925, 928. Thus, for purposes of the Code, the decision whether the court is one 'of competent jurisdiction' is determined not by the situation at the time of filing the suit but instead by the situation at the time the competency of the court is questioned.

We therefore construe the provision of La.R.S. 9:5801, which provides that prescriptions are interrupted by the commencement (filing) of a civil action in a court of competent jurisdiction, to mean that the filing of the suit interrupts prescription if, at the time the exception pleading prescription is filed, the court is of competent jurisdiction. In the present case, therefore, since venue was proper as to Breaux at the time he filed his plea of prescription, the filing of the action in (thus) a court of competent jurisdiction therefore interrupted prescription as to him.

We should note that, where a party files a plea of prescription at a time when the venue is improper, he does not waive his right to plead that the suit is prescribed because of improper venue. Mayeux v. Martin, 247 So.2d 198 (La.App.3d Cir. 1971).

Further, although ordinarily declinatory objections are waived by making an 'appearance', La.C.Civ.P. Art. 925, nevertheless 'the pleading of other objections . . ., the filing of the peremptory exception or an answer therewith When required by law, does not constitute a general appearance.' La.C.Civ.P. Art. 7. (Italics ours.) Thus, when a defendant pleads prescription because of filing in an improper venue, he also does not waive the right to question the improper venue if he files his plea of prescription on that ground simultaneously with his declinatory attack on the venue. He is 'required by law' to do so, cf. State v. Younger, 206 La. 1037, 20 So.2d 305 (1944), since otherwise he would waive his right to question the venue. (If he files the peremptory exception pleading urging prescription Subsequently to filing the declinatory exception objecting to the venue, he thus makes a general appearance waiving declinatory objections. La.C.Civ.P., Arts. 7, 925.)

As to the co-defendant Evans, he excepted to the venue as improper before the default was entered and prayed that the suit against him be dismissed. The trial court entered judgment maintaining this exception and assessing costs against the plaintiff. Upon the plaintiff's earlier appeal, the intermediate court affirmed the trial court judgment holding Tangipahoa an improper venue as to Evans. 238 So.2d 803, 806. However, it likewise remanded the suit to permit Evans to try his plea of prescription in the lower court (see Footnote 2). Nevertheless, since the intermediate court had affirmed the trial court judgment holding that Tangipahoa Parish was an improper venue and thus dismissing the suit against Evans filed in that parish, the effect of the affirmed judgment was to dismiss the suit against Evans in that parish. That court was no longer competent to try a plea of prescription against the demand against Evans as filed in Tangipahoa Parish. ⁵ Cf., Hayes v. Muller, 248 La. 934, 183 So.2d 310 (1966).

We therefore set aside the trial court judgment sustaining Evans' plea of prescription as improvidently entered. To prevent misunderstanding on the remand, we expressly do not rule upon such issues as whether, by supplemental pleading, La.C.Civ.P. Art. 1155, the plaintiff may join Evans in the Tangipahoa Parish suit as solidarily obligated with Breaux, La.C.Civ.P. Art. 74, nor whether the timely filed suit against Breaux had the effect of interrupting prescription against Evans, if he is a solidary obligor, La.Civ.Code Art. 2095.

Decree

For the foregoing reasons, we reverse the judgments of the trial and intermediate courts maintaining the defendants' pleas of prescription, and we remand this suit to the trial court for further proceedings consistent with the views here expressed.

Reversed and remanded.

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