Concurring Opinion.
I.
Bermudez, C. J.The right of Knox to set up the defense of prescription, to protect himself and not Mrs. Bory, appears unquestionable.
The law accords to all creditors and persons, who have an interest in the extinguishment of an allegation, the right to plead prescription for themselves, even if the person bound by the obligation should renounce such prescription. R. C. C. 3466; C. N. 2225.
“Ce serait une erreur de croire que la prescription n’a d’effet qYantan t qu’elle est opposóe par celui qui a prescrit et que c’est au profit de ce dernier une faculté persounelle. * * Les créanciers peuvent ex-ercer les droits de leurs débiteurs. Bigot Préameneu Disc, et Motifs, 8 Mars, 1804.”
“Cette régleest unedes consequences déla régle genérale qui réprouve, soit les dispositions et les arrangements frauduleux, conpus pour éluder des obligations, soit méme des actes qui ne sont que le produit d’nn penchant trop liberal, ou d’un faux caleul, lorsqu’ils tournent au detriment de personnes envers lesquelles on s’est oblige. Dans tons les temps, cette classe d’individns a excité toute la solicitude des législateurs et des tribunaux. Que deviendraient lours droits, le plus sou-vent, s’ils étaient livrés a la discrétiou des débiteurs? Vazeille Pres. No. 353.
“II n’est pas d’un liomme juste, de laerifier ses obligations los plus étroites a celles qui out moins de faveur et de forcé.” Troplong Prese. V. I. No. 100, Duranion V. 21, No. 152.
See, also, Larthet vs. Hogan, 1 Ann. 330; Succession of Gill, 6 Ann. 342; 2 Ann. 546, 367; 8 Ann. 505; 12 Ann. 661.
*437TT.
There can be no doubt that prescription may be interrupted by whoever has an interest to keep a claim alive, whether the debtor wishes or not, and that the presumption of remission or abandonment of the right may be rebutted and removed by showing and proving such interruption.
It is not, however, any act of the creditor that can produce that effect. The law requires that the debtor shall have been cited. This means that the creditor shall sue the debtor, and have the process of law properly and seasonably served on him.
If the debtor be an incapacitated person, such as a minor or a married woman, the creditor must, as a condition precedent to the service of the citation, put that debtor in a legal position to appear and defend himself, by making him legally a party to the suit, even where the saméis brought before an incompetent court. C. P. 115, 118; R. C. C. 121, 124, 125, 3518.
If a suit is brought against a minor instead of being instituted against the tutor directly, or against a married woman, without joining her husband, neither the minor nor the woman being made a party and put in a condition to appear and defend the suit, it is evident that service on them of the process of court will not justify a default and confirmation of it, or a judgment rendered after appearance and answer. This is so, because the person cited had no capacity as such to appear or plead.
“Tout écrit de forme propre a faire annuler une assignation, est de nature á empecher l’iuterruption de la prescription, sans qu’il y ait á rechercher s’il vient d’une faute grossiére, ou s’il tientit l’inobservation de formalités trop minutieuses.” Vazeille, No. 107.
“II faudrait également regarder l’iuterruption comme non avenue, si la citation était donnée á une personue incapable de se défendre, ou a tout autre qu’a l’administrateur légal de ses biens.” Duranton, V. 21, No. 266.
In the present instance, this Court, between the same parties, in this same suit, has decided that Mrs. Bory had never been made a party. It annulled the judgment rendered against her and remanded the case for the purpose of enabling the plaintiff to malee her a party and serve the process of court.
This decision is not only authority, but constitutes res judicata.
Had the plaintiff originally asked that Mrs. Bory and her husband be cited, a service on her would have interrupted prescription (C. P. 192; Bush vs. Decuir, 11 Ann. 503); but this was not done. The *438omission is fatal. Hence, Mrs. Bory, not being a party to 'the suit originally, could not be legally served with .a citation so as to interrupt prescription. This is so, for the plain reason that a mere citation served on one who is not a party to the suit, does not interrupt prescription.
The law relieves a creditor from defects in a citation served when they are not the results of his own acts, or not attributable to him ; but it holds him responsible for any omission occurring by his fault or negligence. The iienalty is the loss of his claim when the plea is set up.
As the plaintiff ought to have put Mrs. Bory, when he first sued on, in a condition to appear and defend herself, either by asking that her husband be cited, or by having her authorized by the court to do so during his absence (as was subsequently done), she was not a party; she was not in court; she had no right to protect herself judicially, and he must stand the consequences of his derelictions.
It is true, that the plea of prescription now insisted upon was previously before us; but we would not even consider it, as Mrs. Bory ■was not then a party to the suit, her presence, being necessary.
The original citation did not interrupt prescription, and the plea set up is well maintained.