White v. Davis

On Motion to Remand. Plaintiffs sue on a judgment rendered in their favor and against the defendant by the Forty-First judicial district court of El Paso county, Tex., on June 19, 1916. This suit was brought on March 3, 1927, being more than 10 years after said judgment was rendered; and they do not allege that said judgment has been renewed or extended.

Whereupon defendant filed exceptions to said suit in the following words:

"That plaintiffs' petition herein filed alleges no cause of action against defendant for the reason that the judgment alleged to have been obtained in cause No. 11,817 in the 41st Judicial District Court of El Paso, Texas, is alleged to have been rendered on June 19th, 1916, and not alleged to have been revived as required by the laws of Louisiana, and is therefore prescribed under the laws of this state by the prescription of ten years, which prescription is specially pleaded in bar of said alleged debt, in bar of said alleged judgment, and in bar of this suit and any suit or action thereon.

"Wherefore defendant prays that this exception of no cause of action and plea of prescription of ten years in bar of said suit be sustained and plaintiffs' suit be dismissed, the writ of attachment herein issued be dissolved and set aside, and plaintiffs' demand be rejected at their costs, and for all needful orders and decrees and full and general relief."

The trial judge maintained said plea in the following words, to wit:

"In this cause, the same coming on for trial or an exception of no cause of action and plea of prescription of ten years filed by defendant in bar of the suit, and the same having been taken up and tried, and the law and the facts being in favor thereof, for reasons orally assigned:

"It is therefore ordered, adjudged and decreed that said exception of no cause of action and plea of prescription be and the same is hereby sustained and plaintiffs' suit dismissed at their cost."

This judgment was appealed from in due course, and in this court defendant complains that the plea of prescription was not in fact submitted along with the exception of no cause of action, although the minutes of the court and the preamble to the judgment so recite.

And accordingly defendant now moves this court to remand the case for the purpose of having the minutes of the lower court and the preamble to the judgment corrected to accord with the alleged facts.

It is not contended, however, that the exception of no cause of action was not regularly submitted and passed upon.

I. As we have said, the plaintiffs sue exclusively upon the judgment of June 19, 1916, and not upon the debt for which the judgment was given. And in Bailey v. Louisiana N.W.R.R. Co.,159 La. 576, 105 So. 626, it was held that under Civ. Code, art.3547, the only method of preventing a judgment from prescribing in 10 years was to revive said judgment within said 10 years. It is upon that principle that defendant bases his plea of no cause of action, contending that a judgment, whether rendered within or without the state, expires and lapses at the end of 10 years, unless revived by another judgment within that time; and hence where a judgment sued upon is on its face more than 10 years old it cannot be sued upon unless it be alleged that it has been duly revived.

II. However, the case is not now before us on the merits of that plea, and we cannot now pass upon it. This may be done only in due course and after hearing the parties thereon.

But it is clear that if that exception be well founded, as the trial judge found it to be, then it would serve no good purpose to remand the case in order to correct the alleged error in the minutes, etc., relative to the plea of prescription.

Accordingly, we have concluded not to allow the motion to remand at this time. When the exception of no cause of action is heard, the case will end if that exception be well founded. If the exception of no cause of action be not well founded, it will then be time enough to remand the case for further proceedings in connection with the plea of prescription.

We remark, incidentally, that at no time, either in this court or in the court below, have plaintiffs even suggested that the judgment sued upon has ever been revived; and hence there is no suggestion, as yet, that plaintiffs have suffered any prejudice by the possible error on the part of the lower judge in not waiting to receive such evidence as they might adduce on the trial of the plea of prescription.

Decree. The motion to remand is therefore denied for the present, with leave to renew the same when the exception of no cause of action is argued.

On the Merits.