Wade v. Caspari , 24 La. Ann. 211 ( 1872 )

Wydy, J.

On the second September, 1854, Lewis B. Wainsly, tutor of the plaintiffs, who were then minors, recovered judgment against their former tutrix and co-tutor for $1441 75, being the balance found to be due on the rendition of their final account.

The plaintiffs, who are now of age, have brought this hypothecary action against the defendant, who acquired the property described in the petition, subsequent to the rendition of said judgment, from said tutrix and co-tutor.

The main defense is, that the judgment upon which this hypothecary action is based, is prescribed, more than ten years having elapsed and no revival thereof attempted.

The court gave judgment for the plaintiffs and the defendant appeals.

We find the judgment sought to be enforced against the property of the defendant by this hypothecary action, has never been revived and seventeen years have elapsed since it was rendered. We think the court erred in not maintaining the plea of prescription. The language of the act of 1853, is very sweeping; it makes no exceptions. It says: “ All judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment; provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed by having a citation issued according to law.” * * * * Acts 1853, pago 250. In Byrne, Vance & Co. v. Garrett, executor, 23 An. 587, this court said: “ The act of 1853, fixing the prescription of judgments at ten years from their rendition, also provides the only means by which it can bo averted.” In the case of Arrowsmith, 21 An. 295, this court said: “ The statute before us is in itself free from ambiguity. It says plainly that all judgments for money shall be prescribed by the lapse of ten years from the rendition thereof unless they are revived before they are prescribed by having citation issued from the court which rendered them.”

But the plaintiffs contend that as they wore minors, they are excepted from prescription under art. 3488 C. C. It is true the Code, which is the statute of 1825, excepts minors from prescription; but the statute of 1853 does not; it makes no exception. Now because minors aro excepted from tho operations of the prescriptions announced in the Code or statute of 1825, does it follow that they are also excepted from the operation of the law of 1853, when'that law makes no exception whatever, but on the contrary declares, in precise terms, that “all judgments for money shall be prescribed in ton years from their rendition” unless revived in the manner therein provided? If judgments in favor of the tutor of minors are not prescribed in ten years, as the plaintiffs insist, then all judgments are not prescribed, but only some. The law of 1853 which lias been decided, 21 An. 295, to be free from ambiguity, will be disregarded under pretext of pursuing its spirit, in contravention of art. 13 C. C. The law of 1853 being free from ambiguity, there is no room for construction; it means wliat it says. When it says: all judgments, whether rendered within or without the State shall be prescribed in ten years, we understand that it means every judgment for money. If the exception in favor of minors in the Code of 1825 wore applied to this statute, its meaning would bo altered; all judgments would not bo prescribed in ten years, but only some; judgments in favor of tutors would not be, although the statute creating- the prescription, makes no exception.

Why should not tutors execute the judgments which they hold against debtors of the minors within ten years? It is their duty to do so.; and if they fail in their duty the minors have the legal mortgage to secure them against tlio losses resulting therefrom. Courts favor laws of prescription because it is the interest of the Republic that litigation should terminate, that there shall he no suits, when parties fail to prosecute tlioir rights within the reasonable period fixed by law for them to do so.

The statute before us makes no exception, and where the law has not discriminated, we can not.

Let tho judgment appealed from be annulled, and let tlio demand of tho plaintiffs he rejected, with costs of both courts.