This case is fully stated in the opinion recently handed down by Justice ST. PAUL, the organ of the court, when it was before us on a motion to remand. A reading of that opinion will show that the only question now presented for review is the ruling of the trial judge on the defendants' exception of no cause of action.
Appellee coupled with his exception of no cause of action a plea of prescription. The trial judge heard the exception and plea on the face of the papers and sustained both.
The plaintiff contends that the petition sets forth a cause of action and, as relates to the plea of prescription, that he has not had his day in court. Appellee's counsel concede that the exception and plea of prescription were submitted to the court on the face of the papers, but they argue that prescription was not pleaded per se but was alleged in the exception of no cause of action, merely as the basis for that exception. They say in the brief they filed on the motion to remand, and to which brief they now direct our attention, that:
"If this court should hold, after due hearing on the merits, that the exception of no cause or right of action, based on prescription, is not triable on the face of the papers, then the judgment would be reversed," etc. *Page 106
In our opinion, if an exception of no cause of action is based solely on a pleaded prescription of an alleged debt, the court must, of necessity, hold that plea to be well founded before the exception can be sustained. Whether or not a twofold proceeding of this character may be considered by the court, on the face of the papers, in a matter involving a domestic judgment, is not the question which is presented to us. This is a suit for a debt, evidenced by a foreign judgment, which was rendered in a Texas court, against a citizen of that state. In the suit plaintiff, a nonresident creditor, has attached property, in this state, which he alleges belongs to his nonresident debtor.
Appellee contends that, on the face of the papers, it appears that this suit was filed more than 10 years after the rendition of the judgment sued upon, the prescriptive period for all judgments in this state, and, as the petition does not negative prescription, that the petition does not disclose a cause of action. The plaintiff contends that he is not required to anticipate a plea of prescription and to show facts, in his petition, interrupting prescription, and that Civ. Code, art.3547, is limited in its scope to domestic judgments.
We think the contention of plaintiff is correct. It is true that article 3547, Civ. Code, makes no distinction between domestic and foreign judgments, but it is the cardinal rule that, where a law is susceptible of two constructions, the one sustaining the constitutionality of the law should be adopted, rather than the one which would render it unconstitutional. To hold that a foreign judgment, to be effective as evidence of indebtedness in this state, must be revived within the time and in the manner provided by our Civil Code for the revival of domestic judgments, would contravene the full faith and credit *Page 107 clause of the United States Constitution. Counsel for appellee say in brief that:
"The article 4, § 1, of the Constitution of the United States, which requires that `full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,' does not stand in the way of defendant availing himself of our laws relating to prescription under which the Texas judgment sued on is barred in this state."
In support of that contention counsel cite "McElmoyle v. Cohen, 13 U.S. Peters, 10 Law Ed. 185."1 This is an erroneous citation. We have examined the general table of cases reported in each one of the 16 volumes of U.S. Peters, as given in volumes 7, 8, 9, and 10 Law Ed., and have failed to find the cited case. We are not prepared, therefore, to say what question was there involved or what application, if any, that case might have to the case at bar. In our opinion, if the contention of appellee's counsel be correct, the full faith and credit clause of the Federal Constitution would be meaningless, as to foreign judgments which had not been revived, in the forum which rendered them within 10 years after the date of their rendition, although the law of the state where rendered gives them full force and effect for a longer period of time.
The Legislature of one state cannot fix the prescriptive period for a debt in another, nor can it prescribe the procedure by which judgments of another state may be revived, or prescription interrupted.
We know of no authority which requires a plaintiff to anticipate a plea of prescription. If the petition otherwise sets forth a cause of action, the suit cannot be *Page 108 dismissed on an exception of no cause of action because the evidence of the debt sued upon is prescribed on its face. Prescription is a defense which must be pleaded, and there must be a hearing thereon, a fortiori the plaintiff might show an interruption of prescription. Prescription may be waived. Many persons observe their moral obligations as faithfully as they do their legally enforceable ones, and the books are full of cases where enforceable judgments have been rendered where prescription might have been successfully pleaded as a bar to recovery.
For these reasons we think the exception of no cause of action should have been overruled. It is therefore decreed that the judgment appealed from be and it is hereby avoided, and this case be and it is hereby remanded to the court below to be proceeded with according to law. It is further decreed that appellee, W.C. Davis, pay the costs of this appeal.
ROGERS, J., concurs in decree.
1 The correct citation is McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177.