DISSENTING OPINION.
On Application for Rehearing.
1. Act 107, of 1898, amending Art. 3519 R. C. C., provides *283that, whenever a plaintiff, having made his demand, shall, at any time before obtaining final judgment, allow five years to elapse without having taken any step in the prosecution of his suit, he shall be considered as having abandoned the same.
2. The purpose of the Statute was to substitute the certainty of a fixed rule and a specified time for the uncertainty of judicial interpretation as to the circumstances, of the case, and the conduct of the parties litigant.
3. The imperative and unqualified terms of the law deal exclusively with the failure to take steps within the time prescribed, and not' with the reasons or motives which induced such failure.
4. The making of distinctions and exceptions in the enforcement of the law would defeat the very object the law was ■intended to accomplish and restore the evil it was intended to eradicate,
DUFOUR, J.Act 107, of 1898, amended Art. 3519 R. C. C. by adding to it the following provision:
“Whenever the plaintiff having made his demand, shall at any time before obtáining 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.”
In interpreting this Statute, the Supreme Court, in Lockhart vs. Lockhart 113 La. 872, said:
“The matter of abandonment was one of interpretation depending upon circumstances and conduct, and subject to no fixed rule. It was, therefore, as we think, the purpose of the General Assembly to substitute certainty for uncertainty xxxxxx and to make it known when it is no longer pending in Court because of its having been abandoned.”
I am of the opinion that it was the purpose of the Statute to a'dopt as a fixed rule that the acts of the parties and not their motives and reasons Tor their acts must be determinative of the fact of abandonment. The failure to.take steps within five years constitutes an abandonment1 of the suit within the imperative, unqualified and unrestricted terms of the law.
Conceding that the judge had stayed proceedings until the termination of another suit, there was no obstacle in the way of a motion to vacate such order and try the cause. If the judge refused the application, the mover’s rights would be reserved, because his motion was a timely step in the prosecution of his suit. ' ■ , .
April 22, 1907. Writ refused by Supreme Court May 15, 1907.It appears to me that to make exceptions and distinctions, whether based on a judge’s order or on anything else, is to' return to the uncertainty of inquiring into circumstances and conduct and to thus defeat the very object the law was intended to accomplish and restore the evil which it was intended to suppress.
The trial judge in maintaining the exception and dismissing the suit as abandoned, said:
“Plaintiff offered in evidence the order of Court heretofore rendered in this cause, saying in effect that the case would be continued until the further order of .Court; but this order did not in any manner prevent the plaintiff from prosecuting her suit during the last five years, and cannot have any force or effect in interrupting prescription.”
Being of opinion that the opinion of the majority is in conflict with both the letter and the spirit of the law, which in my humble judgment, deals solely with the failure to act, without regard to the circumstances inducing such failure, I conclude that the suit should be dismissed, and hence, respectfully dissent.