On Application for Rehearing.
LAND, J.[10] Defendant filed in this court a plea of tbe prescription of three years and contends that tbe two citations served on tbe defendant did not interrupt tbe current of prescription.
Tbe petition of tbe plaintiff was filed on January 15, 1908. On January 30, 1908, defendant appeared and excepted to plaintiff’s demand. This exception was taken up, evidence adduced, and was overruled. On June 14, 1909, tbe defendant answered to tbe merits, and in due course tbe case was tried, and judgment rendered in favor of the plaintiff.
Plaintiff’s cause of action did not arise until after tbe sale of tbe crop was completed in July, 1906. It follows that tbe petition, exception, and answer were filed within tbe three years. A defendant cannot “make an appearance and at tbe same time urge a want of citation.” City of New Orleans v. 'Hall, 21 La. Ann. 439.
[11] In tbe Tutorship of Minor Heirs of Byland, 38 La. Ann. 759, tbe court said:
“The appearance of the attorney supplied or cured the want of citation. Le Blanc v. Perroux, 21 La. Ann. 27; New Orleans v. Walker, 23 La. Ann. 803; Bartlett v. Wheeler, 31 La. Ann. 540; Succession of Baumgarden, 35 La. Ann. 130.”
As after bis voluntary appearance in the court a qua tbe defendant could not have excepted to tbe citation, it follows that be cannot urge in tbe appellate court an objection that tbe citation was not properly served.
For these additional reasons we bold that tbe plea cannot be sustained.
*263The merits of the case were carefully considered by the judge a quo, and we see no good reasons for reversing his findings.
Rehearing refused.