#### DEPARTMENT OF HIGHWAYS, State of Louisiana v. Walter SMITH and Douglas Wildey.

No. 8835.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 14, 1978.

*1065Marshall W. Wroten, Robert J. Jones, David K. Balfour and Richard M. Sandefer, Baton Rouge, for plaintiff-appellant.

Robert A. Pitre, Jr., Gretna, for Walter Smith Sumner and Douglas Wildey, defendants-appellees.

Young, McMahon & Levert, Edward L. Levert, Jr., New Orleans, for Con-Plex, Division of U. S. Industries, Inc., and Rodney Small, defendants-appellants.

STOULIG, Judge.

Before LEMMON, STOULIG and GAR-SAUD, JJ.

This appeal involves a $530.57 property damage claim to a truck owned by the Department of Highways of the State of Louisiana. Plaintiff originally filed suit against Walter Sumner, driver of the truck that backed into the door of the State’s parked vehicle, and his employer, Douglas Wildey. More than 15 months after the accident, plaintiff filed an amended petition to join as defendants Rodney Small and his employer, Con-Plex, Division of U. S. Industries, Inc., who pleaded1 the exception of prescription because more than a year had elapsed between the accident and the filing of the amended petition in which they were cited as defendants.

The trial court found that the negligence of Rodney Small was the sole proximate cause of the accident and the record fully supports this result.

Briefly, Small, who had been seated in the rear seat of the Highway Department truck, opened the door as a dump truck operated by Sumner was moving between 12 and 18 inches from the side of the plaintiff’s vehicle. Small should have been aware that the truck was going to be put in motion as he opened the door; however, his negligence in failing to look before executing this maneuver resulted in the door of plaintiff’s truck being pushed into the path of the moving dump truck which was backing up. Had Small not opened the door, no accident would have occurred.

The trial court properly dismissed plaintiff’s suit against Sumner and Wildey but erred in overruling the plea of prescription filed on behalf of Con-Plex. The original petition would have served to interrupt prescription running in favor of Con-Plex only had the original defendants been liable with it as a cotortfeasor. Absent solidary liability with a defendant timely cited, a negligent late-joined defendant may successfully plead prescription. *Fontenot v. Lucas,*228 So.2d 211 (La.App. 3d Cir. 1969). Con-Plex’s plea of prescription is maintained.

Although the exception of prescription is also urged on Small’s behalf in brief, we note that no formal plea of prescription has been filed on his behalf. A peremptory exception must be filed if pre*1066scription is to be considered on any basis. The court cannot raise it ex proprio motu nor will it consider the plea that has simply been injected in brief or oral argument. *Motor Machine & Supply Co. v. Delilah Towing Co., Inc.,*321 So.2d 896 (La.App. 1st Cir. 1975); *City of New Orleans v. Di Benedetto,*144 So.2d 558 (La.App. 4th Cir. 1962); *Merchants Adjustment Bureau v. Malta,*102 So.2d 781 (La.App. 2d Cir. 1958).

For the reasons assigned, the judgment appealed from is reversed insofar as it overrules the plea of prescription urged for Con-Plex and plaintiffs suit against Con-Plex is hereby dismissed. In all other respects the judgment is affirmed. Defendant Small is to pay all costs of this litigation.

*REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.*

LEMMON, J., dissents with written reasons.

1

. Con-Plex filed a plea of prescription in the trial court and it was also urged on appeal in the brief filed in Small’s behalf.

LEMMON, Judge,

dissents in part and assigns reasons.

Form is indeed triumphing over substance when this court tells Rodney Small that he loses this case he otherwise would have won if the piece of paper filed in this court by his attorney had the word “brief” written at the top of it rather than the word “exception”.

C.C.P. art. 2163 authorizes consideration of a peremptory exception when “filed” for the first time in the appellate court. The requirement of C.C.P. art. 927 that the exception of prescription must be “specially pleaded” should be reasonably interpreted to mean that the “court cannot supply the objection of prescription” (as stated by the introductory clause of the article), which must be supplied or “pleaded” by the party. This article should not be taken to mean that the plea of prescription cannot be “pleaded” by the party in a brief or in some other written document “filed” in the appellate court well in advance of oral argument, nor should the article be construed in conflict with C.C.P. art. 5051, which mandates that rules of procedure should be construed so as to implement the substantive law and not as being an end in themselves.

In this case defendant Rodney Small filed a brief on June 29, 1977, assigning as error in the judgment below the overruling of the exception of prescription. Had he filed ten more pieces of paper marked “exception” and therein reiterated the issue of prescription, those “special” pleadings would not have informed plaintiff any better that prescription was an issue to be determined by this court in the hearing on January 6,1978.

The purpose of filing pleadings is to notify the opposing parties what are and what are not the issues to be decided in the particular court in which the pleadings are filed.1 When that purpose has been accomplished (as was undoubtedly done in this case), justice and fair play demand that substantive issues should not be decided on the basis of the denomination of the papers filed in the court, but should be decided on the merits of the substantive issues themselves.

I therefore dissent from the decree insofar as our judgment failed to maintain the exception of prescription “filed” by defendant Rodney Small, and I would overrule those intermediate appellate decisions based on pre-Code of Civil Procedure statements that briefs are mere arguments and form no part of the pleadings.

1

. The general rules for pleadings are provided in C.C.P. art. 852 et seq., which provide essentially that a pleading must be in writing, must contain a caption setting forth the name of the case and the title and number of the action (C.C.P. art. 853), but that there need be no technical form of pleading (C.C.P. art. 854).