#### George L. RICHARDSON v. William EMMONS, Doris Emmons and Lois S. Lombardo.

No. 8203.

Court of Appeal of Louisiana, First Circuit.

Feb. 1, 1971.

On Rehearing April 19, 1971.

On Rehearing En Banc June 30, 1971.

James D. Thomas, II, of Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, for appellant.

Theo Cangelosi, John Schwab, Robert L. Cangelosi, and John Breaux of Brown, Me-*455Kernan, Ingram & Breaux, Baton Rouge, for appellees.

Before LOTTINGER, SARTAIN and PICKETT, JJ.

PICKETT, Judge.

This is a suit for damages instituted by plaintiff-appellant, George L. Richardson, against the defendants, William Emmons and his wife, Doris Emmons; Lois S. Lombardo, individually, and as the natural tutrix of the minors, Peter Michael Lom-bardo, Paul Joseph Lombardo and Ella Marie Lombardo. The suit was filed May 20, 1968. For a cause of action, the plaintiff alleges that on December 10, 1965, his father Benjamin Richardson, died as a result of a fire which was the direct result of the gross negligence of the defendants. The defendant, Lois S. Lombardo, individually and as the tutrix of the minors, Peter Michael Lombardo, Paul Joseph Lombardo, and Ella Marie Lombardo, filed a plea of prescription of one year. The defendants, William Emmons and Doris Emmons, likewise filed a separate plea of prescription of one year. Both exceptions of prescription were sustained, and the plaintiff has appealed.

This is an action in tort. The pleadings show that the alleged tortious act occurred on December 10, 1965; and this suit was filed May 20, 1968. The cause of action is clearly prescribed by the prescription of one year, unless the prescription was interrupted. LSA-C.C. Articles 3536 and 3537.

The appellant contends that prescription was interrupted by an intervention filed by appellant in Suit Number 117,266, entitled Edward Malone Johnston, et al. vs. William Emmons, et al. on the Civil Docket of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. A copy of Suit Number 117,-266 has been filed in evidence in these proceedings. It discloses that on December 9, 1965, Edward Malone Johnston, et ux., filed said Suit Number 117,266 against William Emmons, et al., claiming damages for the wrongful death of Eddie Johnston. The pleadings disclose that Eddie Johnston lost his life as the result of a fire that occurred on December 10, 1965, on the premises of 638 North 21st Street, in the City of Baton Rouge, Louisiana. It is alleged that said fire was the direct result of the gross negligence of all defendants. The appellant alleged in his intervention which was filed on December 12, 1966, in said- Suit Number 117,266, that his father, Benjamin Richardson, lost his life in the same fire that caused the death of Eddie Johnston. All defendants were served with a copy of the intervention filed by the appellant However, no citations were issued. The defendants filed exceptions to appellant’s intervention; and after a contradictory hearing, the exceptions were sustained, and the appellant’s intervention was dismissed without prejudice.

The sole legal question involved in this appeal is whether or not the petition of intervention filed by appellant, George L. Richardson, on December 12, 1966, interrupted or suspended the one year prescriptive period for a tort action.

Counsel for appellees contend that only the commencement of a civil action will interrupt prescription, and that the filing of an intervention in said Suit Number 117,-266 actually constituted no civil action whatsoever. It is argued that this is particularly true because no citation was issued, and that a citation is essential to the commencement of any civil action other than an executory or summary proceeding.

The appellant says he relies upon the case of Prall v. Peet’s Curator, 3 La. 274 (1832), in which an intervention filed in Peet v. Morgan, 6 Mart.,N.S., 137, by the plaintiff in Peet’s Curator case, but later dismissed on appeal, was held to have interrupted prescription. In so holding, the Supreme Court in Peet’s Curator case said:

> “According to article 3438, prescription is interrupted by a demand, whether *456suit has been brought before a competent court or not. A mistake as to the tribunal, it seems, will not destroy the effect of a suit in the interruption of prescription. And by analogy it ought not when the error occurs in the manner of prosecuting such suit, in consequence of which it may be dismissed.”

The Court held the intervention in Peet v. Morgan, supra, had interrupted prescription under the provisions of Article 3484 of the 1825 Civil Code, which specifically states that, “A legal interruption takes place, when the possessor has been cited to appear before a court of justice, * * It appears that for the Court to hold that the intervention in the Peet v. Morgan case, supra, to have interrupted prescription, it was necessary to find that citation accompanied the intervention. Our present Article 3518 of the Civil Code of 1970, (the successor article to Article 3484 of 1925) likewise provides that in order to interrupt prescription, the party in whose favor the time necessary to acquire it is running, *must have been cited to appear before a court of justice,*on account of the claim to which the prescription would apply. In the case of Hugh v. Hernandez, 25 La.Ann. 360, cited by counsel for the appellee, the plaintiff had previously attempted to assert a cause of action by summary procedure, in which no citation was issued. Following the dismissal of the summary procedure as being improper and unavailable to plaintiff, the plaintiff filed a new suit, after the prescriptive period for the assertion of the cause of action had run. The plaintiff in that case contended that service of the rule in the summary proceeding had interrupted prescription. The Supreme Court sustained the plea of prescription, and, in that connection, said:

> “In the action to annul the judgment rendered on the third of July, 1867, it was decided that the law has not given the summary remedy by rule against sureties on a sheriff’s bond. That the want of citation of the sureties was fatal since they did not answer or otherwise waive citation. *There having been no citation there was no interruption of prescription.”*(Emphasis supplied)

LSA-C.C.P. Article 1201 provides :

> “Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null.

> “The defendant may expressly waive citation and service thereof by any written waiver made part of the record.”

There was neither citation and service, nor waiver of citation and service, of the intervention filed by appellant in Suit No. 117,266. Hence, the plaintiff did not comply with the necessary provisions of Louisiana Code of Civil Procedure Article 1201, which specifically provides that citation, or the waiver thereof, is essential to the commencement of any civil action other than a summary or executory proceeding. LSA-R.S. 9:5801 clearly states that only the commencement of a civil action will interrupt prescription. That statute also provides that when the pleading is filed in either an incompetent court, or an improper venue, prescription is not interrupted except by the service of process.

It is our opinion that the filing of the intervention in Suit No. 117,266 did not constitute the commencement of a civil action because that procedure was found by the court to be improper and unavailable to appellant. Hence, the appellant has failed to comply with one of the two methods by which the running of prescription can be legally interrupted under the provisions of the law of Louisiana:

By the commencement of the suit in a court of competent jurisdiction and in the proper venue; or,

Where the suit is filed in a court without competent jurisdiction and there is citation and service of process upon the defendant within the prescriptive period.

For the reasons assigned, the judgment appealed is affirmed. All costs of this ap*457peal are assessed against the plaintiff appellant.

Affirmed.

ON REHEARING

A rehearing was granted herein to permit us to reconsider our original conclusion that the exceptions of prescription filed by defendants should be sustained. Ultimately, the question to be determined is whether or not the petition of intervention filed by the plaintiff, George L. Richardson, in Civil Action No. 117,266, on the Docket of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana interrupted or suspended the one year prescriptive period of this tort action.

We need not reiterate the facts or issues in detail stated previously. An examination of the record in Suit Number 117,266 discloses that the plaintiff’s petition of intervention was filed in that suit on December 12, 1966, and copies thereof were served on all defendants on December 14, 1966. However, no citations were issued.

The alleged tort for which plaintiff seeks damages occurred on December 10, 1965. This action was filed May 20, 1968. Hence, unless there was an interruption of prescription before the tolling of the one-year period, the pleas of prescription necessarily must be sustained. Counsel for the plaintiff-appellant strenuously contends that the filing of the petition of intervention by plaintiff in Suit No. 117,266 interrupted prescription. The plaintiff further contends the intervention was filed in a court of competent jurisdiction; and that the mere act of filing the suit interrupted prescription under the provisions of LSA-R.S. 9:5801, which states:

> “All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

On the contrary, the defendants are equally insistent that the intervention filed by the plaintiff did not constitute a civil action, for the reason that no citation was issued or served on either of the defendants ; and that citation and service thereof is essential to the commenment of a civil action, as required by LSA-C.C.P. Article 1201, which states:

> “Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null. The defendant may expressly waive citation and service thereof by any waiver made part of the record.”

An examination of the record of the suit in which plaintiff filed his intervention discloses that each of the defendants was served with a copy of the intervention, but that no citation was issued. However, the defendants appeared and, without excepting to the lack of citation, or to the jurisdiction of the court, filed exceptions to the petition of intervention filed by plaintiff in which they alleged:

> “The intervenor has no interest in the principal demand which constitutes the basis of this suit, and therefore has no right to intervene in the suit presented by the main demand, as a result of which intervenor has no right or cause of action in this suit; intervenor has no interest whatsoever in the object of the principal demand, i. e., the recovery of damages by plaintiffs therein, and intervenor does not seek to enforce a right related to or connected with the object of the principal demand.”

The District Court sustained the above mentioned exceptions and dismissed plaintiff’s intervention, without prejudice, on May 20, 1968; and the plaintiff, on the same day, instituted the action now under *458consideration. The defendant, Lois S. Lombardo in her aforesaid capacity, filed a plea of prescription of one year on May 29, 1968; and the other defendants filed a like plea of prescription on June 14, 1968.

The Trial Court concluded that without citation and service thereof the intervention, filed by plaintiff as aforesaid, was null, void and had no meaning. In sustaining the pleas of prescription and disposing of the issues here involved the Trial Court, in written reasons for judgment, said:

> “It is admitted that defendants, Lom-bardo and Emmons, were not cited in Suit No. 117,266 and when they were cited in Suit No. 127,166, one year’s prescription had already applied. The Court is firmly convinced that the intervention filed by Richardson in Suit No. 127,166 (sic) did not interrupt prescription.”

In Stanley v. Jones, 197 La. 627, 2 So.2d 45, the Supreme Court cited City of New Orleans v. Walker, 23 La.Ann. 803, and declared: “A want of citation is cured by the appearance of defendant in the suit for any other purpose than to allege the want of citation.”

The Louisiana Supreme Court in Baton Rouge Building Trades Council v. T. L. James & Co., 201 La. 749, 10 So.2d 606, adopted the lower court’s holding that “A want of citation is cured by the appearance of defendant in the suit for any other purpose than to allege the want of citation.”

In the more recent case of Stelly v. Quick Manufacturing, Inc., La.App., 228 So.2d 548, the court held that a defendant waives citation and service of process by making an appearance, and in that connection cited Gilman v. Babin, 195 So.2d 737 (La.App. 1 Cir., 1967), and said:

> “We also find no merit to the argument that a waiver of citation and service thereof is not valid unless made expressly and in writing, pursuant to the provisions of LSA-C.C.P. Art. 1201. The provisions of this article do not preclude a defendant from waiving citation and service of process by making a general appearance, as provided in Article 7 of the Louisiana Code of Civil Procedure.”

The defendants were served with copies of the petition of intervention which is almost identical with the petition filed by plaintiff in the instant suit. The defendants were fully informed of the nature of plaintiff’s demands in the petition of intervention which is not different from the demand in the instant suit. It is not disputed that the petition of intervention was filed in a court of competent jurisdiction; in fact, in the same court in which the instant suit was filed. Defendants appeared and filed exceptions and secured the dismissal of plaintiff’s petition of intervention. Through the intervention, the defendants were fully informed of the nature of plaintiff’s demands in the instant suit.

For the foregoing reasons, this court finds that when the defendants appeared and filed exceptions to plaintiff’s petition of intervention in said cause No. 117,266, without having first excepted to the want of citation, or the jurisdiction, the lack of citation and service thereof was waived. Hence, we conclude the filing of the petition of intervention by the plaintiff in said cause No. 117,266, was the commencement of a civil action which interrupted the running of the prescription of one year. Therefore, the judgment of the trial court sustaining the pleas of prescription filed by defendants-appellees is set aside and the pleas of prescription are overruled.

For the reasons herein assigned, our original opinion is set aside; and the judgment of the district court sustaining the pleas of prescription filed by defendants-appellees is annulled and set aside and the pleas of prescription are overruled. The case is remanded to the trial court for further proceedings in accordance with law, not inconsistent with this decree. The cost of this appeal assessed against the *459defendants; all other costs to await the final outcome of these proceedings.

Original decree recalled; the judgment appealed annulled and set aside; and case remanded. The cost of this appeal is to be borne by defendants-appellants. All other costs are to await a final determination on the merits.

Reversed and remanded.

ON REHEARING

Before LOTTINGER, LANDRY, SAR-TAIN, ELLIS, BLANCHE and TUCKER, JJ-

SARTAIN, Judge.

Defendant-appellee, Lois S. Lombardo, sought and was granted a rehearing. When this matter was first considered by us we sustained a plea of prescription and affirmed the decision of the trial court which dismissed the action brought by George L. Richardson, plaintiff-appellant. Richardson sought a rehearing alleging that we erred as a matter of law in concluding that his original intervention in Civil Action No. 117,226 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge did not interrupt or suspend the one year prescriptive period of his claim in tort. We granted a rehearing and for reasons therein assigned reversed our previous position and concluded that the aforementioned intervention did in fact interrupt prescription. For reasons then assigned, we reversed the district court and remanded the matter for trial on the merits.

This instant matter is now before us on an application for rehearing sought by defendant-appellee. Movant alleges two errors on our part. First, that our reversal on first rehearing constituted an error of substantive law. Second, the granting of a rehearing limited to briefs and arguments heretofore filed and then simultaneously rendering a judgment on the rehearing is violative of Rule XI, Section 4,1 which according to movant’s interpretation is an error in procedure because the rule specifically provides for either assigning the matter for later argument or at least granting the parties additional time in which to file briefs on the error complained of.

We granted this rehearing en banc because after further consideration we conclude that whereas we have the authority to grant a rehearing limited to briefs, we should give additional time to the parties to submit such additional or supplemental briefs as counsel may desire. This we have done and the matter was considered submitted as of June 18, 1971, the dates briefs were due.

We have reconsidered the position taken by us in both the initial opinion and our opinion on the first rehearing and herewith consider that our ruling on the first rehearing is correct. We now make a part of this opinion as though repeated herein those reasons assigned by us on the first rehearing, overruling defendant-appellee’s plea of prescription.

Accordingly, the judgment appealed from is reversed and this matter is remanded to the district court for a trial on the merits. The cost of this appeal is to be borne by defendant-appellee. All other costs are to await a final determination on the merits.

Reversed and remanded.

1

. Rule XI. Rehearing (4)

> “When a rehearing is granted the case will be specially fixed for argument and at such time may be argued orally or, in the discretion of the court, ordered submitted on briefs already filed, together with such additional or supplemental briefs as counsel for the parties may file after service thereof on opposing counsel and before submission of the case on rehearing.”