I cannot concur in the opinion of my associates that the right to dismiss this suit for want of prosecution for five years has been waived by the motion to revoke the order granting permission to file the supplemental petition.
I deem it advisable to set forth in chronological order the pleadings filed and actions had thereon. The suit was filed on April 2, 1919. On January 6, 1921, on exception of no cause of action, the suit was dismissed as against the Texas Pacific Railway Company. It is evident that, at that time, neither plaintiff nor his counsel believed that the receivers of the Texas Pacific Railway were parties to the suit, because, when counsel for plaintiff, on March 18, 1924, fixed the case for trial, the motion to fix made no mention of any defendant other than Illinois Central Railroad Company, and, although no appearance had been made on behalf of the receivers, no default had been entered against them.
So far, then, as the Texas Pacific Railway Company, or as the receivers were concerned, the matter lay without the slightest attempt at prosecution until April 5, 1926, on which day plaintiff filed a supplemental petition again seeking to hold the Texas Pacific Railway Company.
Therefore, from January 6, 1921, at which time the original petition was dismissed as against the Texas Pacific Railway, until April 5, 1926, at which time the supplemental petition was filed, no step in the prosecution was had, and this period exceeded by some months the pre-emption period of five years.
I believe that my associates agree that, at that time, had defendant moved for the dismissal for want of prosecution, the motion would necessarily have prevailed.
But it is said that, in filing the motion to revoke the order permitting the filing of the supplemental petition, defendant waived its right to now ask for dismissal for want of prosecution.
I do not believe that the action of defendant can be considered as a waiver, because in no sense can that motion be treated as an appearance or answer to the merits, or with relation thereto.
It is necessary to inquire into the question which was raised by that motion because I concede that, if it raised any question relative to the merits, then it constituted a waiver; but not otherwise. Originally the suit on exception was dismissed as against the Texas Pacific Railway Company because of the fact that the property of that corporation was in the hands of and was being operated by receivers. Later, when the receivers were discharged on May 14, 1924, an order was rendered delivering back to the corporation the property, and in that order it was provided that the corporation should defend all suits pending against the receivers. It was under this order that the supplemental petition was filed, and by the supplemental petition plaintiff asserted that he was entitled to continue against the corporation the prosecution of the suit, which he asserted was pending against the receivers. In other words, he conceded that originally he did not have a cause of action directly against the corporation because, at the time of the act complained of, the property *Page 100 of the corporation was not being operated by it, but by receivers, but by the supplemental petition he maintained that he had at all times had and had asserted a cause of action against the receivers, and that under the order discharging the receivers he was given the right to continue against the corporation the suit which, up to that time, had been pending against the receivers.
What issue, then, was raised by defendant's motion to revoke the order granting the right to file this supplemental petition? This motion to strike out the supplemental petition is treated in the majority opinion as though it were an exception of no cause of action. But it is not such an exception, being merely a motion calling to the attention of the court the fact that previously an exception of no cause of action had been maintained. When the matter of striking out the supplemental petition was argued before the district court and when it was argued before us, no question presented by an exception of no cause of action was raised. Counsel for plaintiff admitted that the exception of no cause of action had been maintained and that plaintiff had no cause of action directly against the corporation, but he asserted that the cause of action against the corporation came to plaintiff through the receivers. In answer to this contention counsel for defendant argued that there had never been any suit pending against the receivers because no citation had ever been served on the receivers.
It was only the question of whether the receivers had ever been made parties defendant and whether there had ever been any suit pending against them which was presented on the motion to strike out the supplemental petition.
The opinion rendered by this court shows plainly that defendant's contention was that the receivers had never been served with citation and with copies of the original petition and that no judgment had ever been prayed for against them and that therefore there was, in fact, no suit pending against them. No question even remotely associated with the merits of the controversy was raised. To state the matter differently, the supplemental petition asserted a right to sue the corporation because of the obligation placed upon it by inheritance from the receivers. The motion to revoke and to strike out the supplemental petition denied that any claim was pending against the receivers. It raised no other question. The whole controversy considered by us is stated in the following language in our opinion: "Counsel for appellant contend that in maintaining the exception of no cause of action filed by the Texas Pacific Railway Company his suit was dismissed as to that company, but that since the service of citation was made upon the receivers and no answer or appearance was made in behalf of the receivers, his cause of action as to the receivers has not been affected for the reason that the supplemental petition set up a cause of action against the receivers judicially charged with the defense of this suit, and that no appearance having been made on behalf of the receivers and no judgment of court dismissing them having been rendered, his claim is still good and enforceable as against their successor." King v. Illinois Cent. R. Co. et al.,15 La. App. 1, 131 So. 68, 69.
When this court held that, although citation had not been served on the receivers, nevertheless the suit had at all times been pending against those receivers, it was then time enough to assert that, if that were true and there was a suit pending, then that suit had been pending without prosecution for more than five years.
The several cases cited by my associates hold no more than that an appearance to contest a question involving or relating to the merits waives the right to dismiss for want of prosecution.
In Geisenberger v. Cotton, 116 La. 651, 40 So. 929, 930, the Supreme Court said: "* * * The defendant waived the objection [his prescriptive right] by answering to the merits."
The entire question presented in Continental Supply Co. v. Fisher Oil Co., 150 La. 890, 91 So. 287, was summarized by the Supreme Court in these words: "An answer to the merits waives the objection that the suit has been abandoned for want of prosecution for five years."
It is said that there should be applied, in a situation of this kind, the same reasoning on which is based such decisions as that rendered in First National Bank v. Johnson, 130 La. 288,57 So. 930, 931, in which is found the following: "The rule is that an appearance to the suit, except for the purpose of objecting to the jurisdiction, or to the process or citation, subjects defendant to the jurisdiction of the court."
The same rule, differently stated, is found in Iddle v. Hamler Boiler Tank Co., 132 La. 476, 61 So. 532, 533, in which a defendant coupled with a plea to the jurisdiction alternative exceptions of vagueness and of no cause of action. In that case the court said: "It is evident that a defendant cannot logically or consistently deny the jurisdiction ratione personæ of a judicial tribunal, and at the same time invoke its action on the subject-matter of the suit."
The reasoning of those cases is authority for defendant's position here. It denied that there was any suit pending. How, then, could it couple with that denial an affirmative charge that the suit had been pending without prosecution for more than five years?
It could not assert its right to a dismissal *Page 101 for want of prosecution until it had been decided that there was actually a suit pending.
The wisdom of permitting the dismissal of suits for want of prosecution for five years could not be better illustrated than by this case. Here the suit was filed more than thirteen years ago. During practically all of that time no effort was made to prosecute it against either the receivers or the corporation. It is a suit (against a carrier for damage to goods in transit) under which the burden is placed on the carrier to disprove negligence. It may well be that the records have been lost, and it is almost certain that some of the witnesses have left the employ of defendants, or have died, and it would impose upon such defendant a manifestly unreasonable hardship to require it to make defense now, since, for more than thirteen years, no serious effort was made to prosecute the suit, and, for more than five years, no effort at all was exerted.
I respectfully dissent.