Crusel v. Tierce , 150 La. 893 ( 1922 )

PROVOSTY, J.

Plaintiff sues to revive a judgment, and defendant pleads the prescription of 10 years provided for in article 354 f of the Code, reading in part:

“All judgments for money * * * shall be prescribed by the lapse of ten years from the rendition of such judgments. Provided, however, that any party interested in any judgment may have the same revived at any tíme before it is prescribed, by having a citation issued according to law, to the defendant * * * from tlie court which rendered the judgment,” etc.

Plaintiff’s demand, in tlie suit in which the judgment sought to he revived was rendered was for a very large amount. It was rejected by the district court, except to the extent of $2,974.67, by a judgment signed on January 27, 1906. Plaintiff appealed to the Supreme Court, and that court increased the allowance to $9,9-12.37 by a judgment handed down on January 7, 1907. A rehearing was applied for by defendant. It was refused on February 4, 1907. While refusing this rehearing, this court corrected an error of calculation which had crept into the judgment, whereby the judgment was reduced to $8,-809.70. It. is this judgment plaintiff seeks to revive.

The citation in the suit for revival was served on defendant on January 15, 1917.

The judgment sought to be revived may be said to have existed as to $2,974.67 of it from the time judgment was rendered in favor of plaintiff for that amount by the district court; but it did' not exist for any excess over that amount until judgment was rendered by this court on January 7, 1907. Now, as prescription cannot possibly run on a judgment until it exists, the plea of prescription is clearly not applicable to that part of the judgment constituting this excess. That point was decided in the case of Scott v. Seelye, 39 La. Ann. 749, 2 South. 309, where the court said:

“The contention that the judgment of the Supreme Court must be read behind the signature of the district judge, as though rendered by him, and that prescription must be computed from that signature, can hardly be considered serious — for, that would bo to allow prescription to run against a judgment before it existed.

“By ‘rendition’ found in article 3547, R. C. C., the Legislature meant the finality of the judgment, sought to be revived, whether by the signature of the district judge, or by the expiration of the last judicial day allowed to ask a rehearing, or the refusal of such rehearing.”

It is suggested by counsel that in a later decision (Hayden v. Sheriff, 43 La. Ann. 385, 8 South. 919), this court took a different view, but in that case the present point was in no way involved.

In discussion, in consultation, it was suggested that the prescription as to the judgment rendered by the Supreme Court should run from the date the judgment was handed down,'January 7,1907, and not from the date the rehearing was refused. But a judgment is not final so long as an application for a rehearing is pending; and, as was said by this court in the Seelye Case, supra, “By rendition found in article 3547, C. C., tlie Legislature meant the finality of the judgment;” and a judgment is not final so long as an application for a rehearing is pending. An application for a rehearing in the appellate court is analogous to an application for a new trial in the trial court, and in the trial court a judgment does not become final until the delay for application for a new trial has expired. Until then it is no judgment, and cannot even be validly signed.

As to the $2,974.67 for which the district court gave plaintiff judgment, the decisions of this court in the cases of Arrowsmith v. Durell, 21 La. Ann. 295; Walker v. Succession of Hayes, 23 La. Ann. 176; Byrne, Vance & Co. v. Garrett, 23 La. Ann. 587; Samory v. Montgomery, 27 La. Ann. 50, would appear to control. They hold that an appeal, whether suspensive or devolutive, does not arrest the course of the prescription.'

The trial court overruled the plea of prescription in toto. It should have been sustained as to the $2,942.37 for which the trial court had rendered judgment in favor of plaintiff, and overruled as to .that part of the judgment which came into existence only by the judgment of the Supreme Court.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, except as to that part of it consist-iiig of the $2,942.37, for which the trial court rendered judgment in favor of plaintiff in the suit in which the judgment sought to he revived was rendered; that as to the latter part it be annulled, and plaintiff’s, suit dismissed; and finally, that the plaintiff pay the costs of the present appeal.

SOMMERVILLE, J., dissents. O’NIELL, J., is of the opinion that the plea of prescription should be sustained, and therefore hands down a dissenting opinion.