Cocke v. Cavalier , 175 La. 151 ( 1932 )

This is a proceeding by rule. It is brought under the provisions of Civ. Code art. 3519, as amended by Act No. 107 of 1898. The pertinent part of article 3519, as amended, is as follows:

"Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same."

The evident intent of the Legislature, in the passage of Act No. 107 of 1898, was to require the plaintiff, in an instituted suit, to be reasonably diligent in the prosecution of it. The only question presented in this case is whether or not the docketing of the case for trial can be reasonably held to be a step in the prosecution of the plaintiff's cause of action.

This suit was filed December 15, 1919. The defendant, Henry J. Robbert, answered the suit on January 9, 1920, and the case was placed on the summary call docket for March 4, 1920. Thereafter the transcript shows the following entries:

3/4/20, Case continued by preference.

3/18/20, Case continued by preference.

4/1/20, Case continued by preference.

4/22/20, Case continued by preference.

5/16/20, Case continued by preference.

3/14/24, Motion to place on summary call docket.

3/28/24, Case passed.

12/15/25, Motion to place on summary call docket.

1/7/26, Case passed.

10/19/26, Motion to place on summary call docket.

11/10/26, Case continued to foot of call docket.

1/31/28, Motion to place on summary call docket.

3/7/28, Case continued by preference.

1/16/29, Motion to place on summary call docket.

3/28/29, Continued to be reassigned.

10/24/29, Continued indefinitely.

4/24/30, Motion to place on summary docket.

5/14/30, Continued indefinitely.

9/13/30, Continued to foot of call docket.

11/16/30, Continued to foot of call docket.

Following the last of the foregoing entries, the defendant ruled the plaintiff into court to show cause why his suit should not be considered as having been abandoned. The rule was heard, submitted, and taken under advisement.

The trial judge, for written reasons assigned, rendered judgment on January 15, 1931, making the rule absolute, and the plaintiff (respondent in rule) appealed. It is seen that the judgment on the rule was rendered eleven years and one month after the suit was filed.

The question presented in this case is not to be considered as res novo in this state. In Augusta Sugar Co., Ltd., v. Haley,163 La. 814, 112 So. 731, 732, Mr. Justice St. Paul, the organ of the court, said:

"We think that a step in the prosecution of a suit means something more than a mere passive effort to keep the suit on the docket of the court; it means some active measure taken by plaintiff, intended and calculated to hasten the suit to judgment. Otherwise we would have this absurd result, that every effort of a defendant to dismiss the suit would result merely in prolonging the delay within which the plaintiff must proceed with the prosecution thereof.

"And such was not the legislators' intent; for it is well known that the very purpose of the act was to put an end to the then prevailing practice of filing suit to interrupt prescription, and then letting the suit hang perpetually over the head of the defendant unless he himself should force the issue; in other words, of putting on the defendant the burden of showing that plaintiff's claim was unfounded."

In this case the suit is upon a promissory note. The defendants are the maker and indorsers thereof. It appears that the maker of the note did not answer the suit or make an appearance in the case, and it does not appear that the plaintiff has attempted to secure judgment against him by default. So far as the record discloses, plaintiff has taken no active step in the prosecution of his demand, but has confined his activities to passive efforts to keep the case on the court docket.

We think it was the legislative intent to remedy just such a situation as this case presents. The extended professional courtesies, so forcefully presented to the court in counsel's eloquent argument, are matters de hors the record, and, therefore, cannot be considered.

For the reasons stated, the judgment appealed from should be affirmed at appellant's cost.