I agree with what is said in the opinion being handed down in this case to the effect that, the note appearing on its face to be prescribed, the burden was on the plaintiff to allege and prove facts showing an interruption of prescription on the note. Continental Bank Trust Co. v. Simmons et al., La.App.,177 So. 384; Lowentritt v. Posey, 5 La.App. 449; Sherrouse, Ltd. v. Phenix, 14 La.App. 629, 128 So. 536; Stovall v. Tolar, La.App.,172 So. 539; Cullota v. Washington, 7 La.App. 75.
However, the Pleading and Practice Act (Act 157 of 1912, as amended) provides that all material facts alleged in the petition and not denied shall be deemed admitted. This act also provides that all exceptions involving matters of fact (and it would seem that an exception of prescription raising the question of an interruption does involve matters of fact) must be verified the same as the allegation of a fact in a petition or an answer.
So it appears to me to be very logical that where a plaintiff alleges, as in this case, that the defendant owes it only one debt and that this debt has been acknowledged during the running of prescription verbally and by letters, these letters being annexed to the petition, it then becomes necessary for the defendant who pleads prescription to deny the alleged interruptions, and if he fails to so deny them they *Page 516 might be taken as true. This conclusion seems to be supported by the decision in the case of Jeanfreau v. Jeanfreau, 182 La. 332,162 So. 3, and the other two cases mentioned in the opinion on this same point. It should be remembered that the case of Manders v. Irwin et al. cited and largely relied on in the majority opinion was decided before the Pleading and Practice Act was passed.
In any event, it seems to me that there is so much doubt and confusion on this question as to whether or not it was the duty of the defendant to deny these alleged interruptions of prescription pleaded by the plaintiff, or whether plaintiff bears the burden of proving these allegations without any denial of them by defendant that we should give the plaintiff another opportunity to prove these interruptions if we are going to hold that it bears that burden. Article 906 of the Code of Practice gives the appellate courts a wide latitude in remanding cases for the taking of further testimony where the ends of justice would be best served by taking that course. That is what this court did in the case of Cullota v. Washington, 7 La.App. 75, and that is the course I think we should adopt in this case.
I therefore respectfully dissent.