Weiller v. Blanks , 1 McGl. 296 ( 1881 )

Rogers, J.

The late Fourth District Court for the parish of Orleans rendered judgment in favor of plaintiffs against defendants. Plaintiffs appealed to the Supreme Court for the reasons, as shown by their motion of appeal,, that Peterson & Hill, who had intervened, had been, in the same judgment, decreed the owners of certain property, which plaintiffs had sequestered and upon which they claimed a lien and privilege. In 1873 the Supreme Court affirmed the judgment against Blanks & Co., who had taken no appeal, and set aside the judgment which had decreed Peterson & Hill the owners of the property sequestered. In March, 1870, iff aintiffs issued execution against Blanks & Co. without realizing. In 1881 a pluries fi. fa. was issued and the seizure made thereunder arrested by the defendants, on the ground that the judgment was prescribed by the lapse of ten years since its rendition.

It is contended, before us, by the able counsel for plaintiffs, that the judgment of 1869, was set aside and annulled by that of the Supreme Court in 1873, which was the final judgment in the case 5 that the plaintiffs who had obtaiued the judgment in the-court a qua were not satisfied and had suspensively appealed.

We can see no distinction in the application of the rule as to whether plaintiff or defendant takes the appeal — with more reason could it be urged when the defendant takes the suspensiye appeal, because plaintiff is thereby prevented from executing his judgment. This is best illustrated by. the facts of this case- Plaintiff notwithstanding his appeal sought to make the judgment out of Blanks — he had this right, because Blanks & Co. had not appealed. They were satisfied with the judgment against them, and the ODly issue still undetermind and on ap. peal, was as to the ownership of certain property upon which plaintiffs claimed, and, as it subsequently proved, were entitled to a lien and privilege. But plaintiffs to realize their judgment were not limited to this particular property, their lien was only an additional security for the payment of their claim, they still had a final judgment against Blanks & Go., by virtue of which, at any time, they might have delivered into the custody of the law any property subject to seizure, and if there was - a doubt on this point, plaintiffs have furnished an interpretation by an execution issued at their own instance, in 1870. It is not necessary to determine that because they issued their execution in 1870 they abandoned their appeal — it is really not a question to be urged by Blanks & Go. now, who seek a decree declaring the judgment against them extinguished by reason of the prescription of ten years. We have entered upon the discussion of the views just enunciated, as the counsel for appellants have labored with much fervor in oral and printed argument to show that the error of our brother of the District Court resulted from a misconception of certain authorities, which we think are totally inapplicable to the case, because one who is pursuing his rights in court cannot be said to be sleeping on his rights, which axiom is the excuse for this mode (prescription) of extinguishing obligations.

In our opinion, however, the judge a quo was correct. 1st. It is immaterial whether the appeal is at the instance of the plaintiff or defendant. If a plaintiff has obtained a judgment, though it may not be all he desired, and he is seeking on appeal to improve it, he can revive it before the expiration of ten years, and he would not thereby prejudice his rights. The judgment of revival “in no respect validates the original judgment, or corrects any defect in it if such exists.” It does not impart to it any additional force or effect, but simply keeps it alive, preserves its validity and prevents its extinction by the lapse of time.” Marbury v. Pace, 30 La. An. 1331.

2dly. Under the Acts of 1853, p. 250, “judgments for money shall be prescribed by the lapse of ten years from the rendition of said judgment.” The Supreme Court has determined that this statute its clear and free from ambiguity, and that tribunal has decided that the terms do not apply to the rendition of the judgment by the Supreme Court, because the statute says it “ shall be prescribed by the lapse of ten years from the rendition thereof, unless revived before they are prescribed by having citation issued from the court which rendered them.” Arrowsmith v. Durel, 21 La. An. 296. “ The rendition of the judgment is the signing thereof by tbe judge.” Walker v. Succession of Hays, 23 La. An. 177.

3rdly. “ Prescription is a creature of positive law. The law is mandatory and courts are bound to obey it.” Yale v. Handle, 23 La. An. 580.

“So far from the pendency of an appeal from the original judgment being a good reason why proceedings should not be taken to revive it, the want of such proceedings will enable the judgment debtor to plead its extinguishment by prescription, for it is now settled doctrine that whether an appeal from the original judgment be devolutive or suspensive, its pendency does not dispense the plaintiff who obtained it from instituting Lis action for its revival and citing the defendant to answer thereto.” Marbury v. Pace, 30 La. An. 1331.

We are not called upon to determine the rights of plaintiffs as to the' intervenors Peterson & Hill. We are dealing with the judgment rendered against Blanks & Co, who, with the plaintiffs, are the only parties before us.

Judgment affirmed.

Rehearing refused.