175 La. 160

#### JONES v. AMERICAN BANK & TRUST CO.

Nos. 30824, 30935.

Supreme Court of Louisiana.

Feb. 29, 1932.

On Rehearing June 20, 1932.

*36Spearing, McConnell & McClendon, of New Orleans, for appellant.

Lazarus, Weil & Lazarus, of New Orleans, for appellee.

ST. PAUL, J.

This is an appeal from an order dismissing plaintiff’.s suit under the provision of Act No. 107 of 1898, amending article 3519, Civ. Code, so as to provide that: “Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

I.

This order was entered by the court below on September 19, 1929, on motion of defendant made on the same day, suggesting that more than five years had then elapsed since plaintiff had taken any steps in the prosecution of his suit, all in accordance with ruling in Lockhart v. Lockhart, 113 La. 872, 37 So. 860, that, under such'circumstances, “at the suggestion of any party in interest, it [the suit so abandoned] may properly be stricken from the docket or dismissed.”

For the purpose of this appeal, and so far as it is pertinent to the issue here involved, the course of the case in the court below was as follows: '

> 1922, May 5th — Suit filed

> 1922, May 27th — Motion to fix exceptions

> 1923, Nov. 5th — Summary Call Docket (No. 219)

> 1928, March 20th — Motion to place on Call Docket

> 1929, Sept. 6th — Motion to place on Call Docket

> 1929, Sept. 9th — Summary Call Docket (No. 81)

> 1929, Sept. 19th — Motion to dismiss suit.

From which it appears that between the entry of May 27, 1922 (motion to fix exceptions), and the entry of March 20, 1928 (motion to place on call docket), a period of 5 years 9 months and 24 days elapsed; broken, however, by the entry of November 5, 1923 (summary call docket, No. 219), into two unequal periods of 1 year 5 months and 9 days, and 4 years 4 months and 15 days, respectively.

Therefore, if the entry of November 5, 1923 (summary call docket No. 219), indicates a step taken by plaintiff in the prosecution of this suit, then a full five years’ period has at no time elapsed without the plaintiff having taken any step in the prosecution thereof, and the suit was improperly dismissed.

On the other hand, if the entry of November 5, 1923, does not indicate a step taken by plaintiff in the prosecution of this suit, then more than five years have elapsed at one time without plaintiff having taken any step in the prosecution thereof, and the suit was properly dismissed.

II.

It was once the case that, when a plaintiff filed a suit especially one entitled to be summarily tried and then allowed it to remain indefinitely untried, it might indeed happen “once in a blue moon” that he had a meritorious claim, but the all but catholic chances were that he had not; and that he had filed his suit only to interrupt the course of prescription and then to await, Micawber-like, for “something to turn up.” That, of course, may no longer be the ease; and far be it from us to suggest that it is.

But in order to put an end to what then seemed to be an evil requiring abatement, the Legislature passed Act No. 107 of 1898, amending article 3519, Oiv. Code, by adding thereto the clause hereinabove just quoted, as to which this court said, in Lockhart v. Lockhart, 113 La. 872, 37 So. 860: “The amendment, therefore, consists of a distinct clause declaring under what circumstances a suit shall be considered abandoned. * * * The matter of abandonment was one of interpretation, depending upon circumstances and conduct, and subject to no fixed rule. It was therefore, as we think, the purpose of the General Assembly to substitute certainty for, uncertainty, and * * * to make it known When it [the suit] is no longer pending in court because of its having been abandoned.”

*37And pursuing that same thought, the Court of Appeal for the parish of Orleans in State ex rel., *etc., v.*Edrington, 11 Orl. App. 288, Judge, said: “A step in the prosecution of a suit, within the meaning of Act 107 of 1898, requires some *formal*move before the Court, intended to hasten the judgment.” (Italics ours.)

Again pursuing the same thought, this court said, in Lips v. Royal Ins. Co., 149 La. 359, 89 So. 213, 214: “It [the filing of /an answer by the defendant] cannot be so regarded [i. e. as a step taken by plaintiff in the prosecution of the suit].”

And pursuing still further that same thought, the Court of Appeal, Second Circuit, in Seligman v. Scott, 17 La. App. 486, 134 So. 771, 772, said: “No action taken by any person other than the plaintiff can have the effect of keeping this abandonment from taking place, except that the defendant can waive it by definite action on his part. Nothing that the sheriff or clerk or any other officer does or fails to do can have any effect on the abandonment one way or the other.”

And that ruling was approved by this court in denying a certiorari in the case October 5, 1931.

III.

The statute is evidently one of public policy. The Civil Code had provided: “Art. 3470. There are no other prescriptions than those established by this Code and the statutes of this State now in force.”

But the ingenuity of counsel had devised a means of extending indefinitely the short prescriptions of one, three, and five years, although statutes of limitation and repose are essentially matters of public policy. This, by the simple expedient of filing suit upon some fancied or doubtful, claim and then allowing such suit to lie dormant fpr some long period far beyond that of the original period of prescription. ,

It was to stop this practice that Act No. 107 of 1898 was passed, and it would be wholly to emasculate the act and defeat the one and only purpose thereof, to wit, that of substituting “certainty for uncertainty,” to allow any but record evidence to show that plaintiff had in fact .taken some step intended to hasten the judgment by formal move before the court.

W-e are asked here to *presume*that the case was put on the call docket at the (perhaps informal) suggestion of the plaintiff. This we cannot do without defeating the very purpose of the statute. And moreover there is no presumption that it was so done at the instance of pftaintiff, notwithstanding i'the fact that plaintiff had the chief interest in having it done, for it was the plain ministerial duty of the clerk to put it there of his own initiative “as soon as (the case was) at issue.” See Rev. Stat. § 1991, as amended by Act No. 23 of 1882, p. 39.

We are therefore of opinion that the suit was properly dismissed.

Decree.

For the reason assigned, the order appealed from is affirmed.

On Rehearing.

ROGERS, J.

The issues involved are fully set forth in our original opinion. As stated in that opinion, the crucial point in the case is whether the entry of November 5, 1923, reading “Summary Call Docket (No. 219),” indicates a step taken by plaintiff in the prosecution of his suit.

We held that there is no presumption that the entry was made at plaintiff’s instance. Plaintiff, while insisting that there is such a presumption, contends that the placing of the case on the call docket on November 5, 1923, “was demonstrably the affirmative action of the attorneys for the plaintiff.” In support of the contention, plaintiff has filed in this court a supplemental transcript containing a copy of the entire entry of November 5, 1923, on the call docket, and the direction, “Please fix, J. Zach. Spearing.” Plaintiff has also brought up the original call docket of division C of the Civil District Court for the purpose of showing that the entire entry therein is in the handwriting of Mr. E. R.-Mabry, now deceased, who was then associated with Mr. Spearing, plaintiff’s attorney. And plaintiff argues that the record as now made up demonstrates that he did on November 5, 1923, take a step in the prosecution of the suit; and, as five years had not elapsed when the motion of March 20, 1928, to place the case on the call docket was made by him, the order of the district court in dismissing his suit for want of prosecution was erroneous and should be reversed.

Defendant contends that the court cannot consider the evidence referred to by plaintiff, but must decide the case on the record as made in the district court. And that even if the evidence should be considered it offers no bar to the dismissal of the suit under, the provisions of article 3519 of the Civil Code, as amended by Act No. 107 of 1898.

Taking up defendant’s contentions in their reverse order, we think that if the entries in the call docket were made on behalf of plaintiff in the orderly course of the litigation they would constitute a step taken by plaintiff' in the prosecution of his suit.

In the case of J. Bernard Cocke v. Ferdinand Cavalier et al., 143 So. 33, this day decided, we held that a motion by plaintiff to have the case placed upon the summary call docket was a step in the prosecution thereof *38within-the intendment of the legislative act. In the course of the opinion we said that: “The word ‘prosecution,’ as used in the statute means any move made by plaintiff to continue, to follow up, or to go on or proceed with the case. In order that the case might be finally disposed of and that ‘final judgment’ might be obtained, it was necessary that it be set down for trial. An active move made by plaintiff to have his ease placed on the summary docket of the court so that it may be reached and set for trial is a necessary step in the prosecution thereof.”

Whether plaintiff filed a formal motion or actually placed the case on the call docket himself, or caused it to be done, with the direction that it be fixed, the result accomplished was the same; namely, placing the case in a position where it might be reached and fixed for trial in the orderly course of proceedings in the district court'. Either method of procedure involved an active move on plaintiff’s part in the prosecution of the suit.

Defendant is correct in its contention that this court cannot receive evidence originally, nor consider as evidence documents that were not introduced in the district court. Code Prac. art. 895.

The only way in which new evidence can be presented to this court is to remand the case, which the court has the authority to do under article 906 of the Code of Practice. That article permits this court to remand a case when it is not satisfied to pronounce final judgment on the record as submitted. We think that this case is ’one in which we should have all the available data before us in order that we may act advisedly in reaching a decision.

Plaintiff’s suit was filed on .May 5, 1922, and defendant argues that it would be inequitable, after the long delay, not to dismiss the suit for want of prosecution. -The answer to the argument is, that the statute on which defendant relies in support of its demand expressly provides that a suit cannot be dismissed if five years has not elapsed from any step taken by plaintiff in its prosecution. No matter how long a suit may be pending, it is not inequitable for a plaintiff against whom the statute is invoked to set up by way of defense that the statutory penalty of dismissal cannot be imposed, because he has not allowed five years to elapse between the steps he may have taken in the prosecution of the suit, nor would it be inequitable for a court to maintain such a defense if well founded. There is nothing suggested in the' present record why defendant, if it was dissatisfied with plaintiff’s delay in bringing the case to an issue, could not itself have caused the case to be fixed for trial and disposed of long before it instituted the proceeding which is now under review.

For the reasons assigned, the order appealed from is annulled, and this case is remanded to the district court for further proceedings consistent with the views herein expressed.

BRÜNOT, J., dissents.