191 La. 480

#### Succession of THOMPSON.

No. 35000.

Supreme Court of Louisiana.

Nov. 28, 1938.

Rehearing Denied Jan. 10, 1939.

*2Edward M. Heath, of New Orleans, for relator.

Felix Wilfred Gaudin and Hillary J. Gaudin, both of New Orleans, for Harry A. Thompson’s executrix.

■ROGERS, Justice.

Alleging itself to be a creditor of the Succession of Harry A. Thompson in the sum of $2260.32, Cicero A. Ramsey, Inc., opposed the final account of the executrix, Mrs. Harry A. Thompson. The executrix filed exceptions of no cause or right of action and prescription to the opposition. Without passing on the plea of prescription, the trial judge maintained the exception of no cause of action. The matter is now before us for review upon the application of the opponent.

Opponent alleges in its opposition that, as of the date of incorporation, it was assigned certain accounts by Cicero A. Ramsey, representing monies loaned Harry A. Thompson, during his lifetime, extending over a period of years beginning May 21, 1923, and ending on March 28, 1925; that the decedent, during his lifetime, made various and sundry payments on this indebtedness, beginning April 3, 1925, and continuing through July 24, 1936, both to Cicero A. Ramsey and to opponent, as will more fully appear from an itemized statement attached to and made part of the opposition; that opponent made frequent demands upon the decedent during his lifetime for payment but had never been successful in obtaining payment in full, although it accepted partial payments on the indebtedness over a period of years; that periodical statements of the indebtedness were furnished the decedent during his lifetime, and that on February 4, 1937, the opponent received a letter from Mrs. -Thompson, who is now executrix of the succession, acknowledging receipt of its statement; that no protest has ever been raised in connection with any of the statements' furnished questioning the amount of the indebtedness, the aggregate of the credits thereon, or the interest charged; that opponent has not been placed on the final account for the amount of its claim, and opponent prayed that its opposition be filed; that the account be amended by placing opponent thereon as a creditor in the sum of $2260.32, with interest, and that all its rights be reserved to proceed in a separate action against Mrs. Thompson, individually, the sole and only heir of the decedent.

The account attached to the opposition shows that the last loan was made by Cicero A. Ramsey to Harry A. Thompson on March 28, 1925. It also shows credits allowed Harry A. Thompson, beginning April 3, 1925, to and including December 9, 1934, on which date a balance of $1835.90 is shown to be due. The interest charged on this balance, to and including December 8, 1937, less a credit of $135 allowed on July 24, 1936, for the purchase price of one Copeland Refrigerator, has increased the balance alleged to be due to the sum of $2260.32, which is the amount claimed in the opposition.

In support of her exception of no right or cause of action, the executrix relies on Article 2278 of the Revised Civil Code, providing among other things that parol evidence shall .not be received “to prove any acknowledgment or promise, of a party deceased to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed.” The executrix points out that the account annexed to the opposition discloses that the last loan by Cicero A. Ramsey to Harry A. Thompson was made on March 28, *31925; that according to the allegations of the opposition and the account attached thereto, opponents claim is for money lent, which is prescribed in three years under the provisions of Article 3538 of the Revised Civil Code; that there is no allegation that the opponent holds a written statement, note or bond of the decedent sufficient to interrupt prescription and, therefore, opponent can not prove by parol evidence the interruption of the three years’ prescription in the face of Article 2278 of the Code, which article specifically prohibits it.

The trial judge maintained the exception of no cause of action because, from the allegations of the opposition and the statement annexed thereto, the only proof possible of the alleged interruption of prescription would be by parol testimony, which is inadmissible.

The primary question' to be determined in this case is whether a plea of prescription can be urged and maintained under an exception of no cause of action.

In the case of Davis v. Arkansas Southern R. Co., 117 La. 320, 41 So. 587, this Court, in discussing the creation and classification of exceptions by the lawmaker, declared, as shown by syllabus No. 3:

> “When the lawmaker in the Code of Practice established and classified exceptions of different kinds to be advanced at different stages of cases, and to be followed by announced consequences, it was intended that they should be resorted to under the circumstances stated. Courts should see that each exception should be made to perform the function properly appertaining to it, and not be allowed to have another substituted for it, and thus be lost, merged, and confused.”

Although the exception of no cause of action is extremely broad in its scope, it is by no means all-embracing. The exception of no cause of action and the exception of prescription are among the numerous exceptions judicially recognized and enforced. The exceptions are separate and distinct pleas. The exception of no cause of action admits all well pleaded facts and must be disposed of on the face of the petition. The exception of prescription does not necessarily do this. Prescription must he expressly and specially pleaded. The plea can not be supplied ex officio by the court. Generally speaking, the one who pleads prescription must furnish proof necessary to sustain the plea.

The exception of no cause of action can not be made to fill the place of an exception or plea of prescription. It was so expressly decided in the case of White v. Davis, 169 La. 101, 124 So. 186. In that case, this Court held that plaintiff is not required to' anticipate a plea of prescription and show facts in his petition interrupting prescription. The Court stated, at pages 107 and 108, 124 So. at page 188, of the opinion:

> “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 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.”

In the case of Ruddock Orleans Cypress Co. v. De Luppe, 119 La. 952, 44 So. 794, this Court said [page 795]:

> “The allegations of a petition may disclose a perfect cause of action, while the plaintiff may not be able to adduce the legal evidence necessary to make out his case. The difference between allegations and proof is obvious, and it will be time enough to discuss the admissibility of parol evidence when it is offered on the trial.”

The provisions of Article 2278 of the Revised Civil Code can only be invoked when parol testimony is offered to prove the acknowledgment or promise of the decedent to pay the debt claimed by relator in order to take that debt out of prescription. In other words, the Court is not in a' position to hold that the proof relator will offer in support of its demand is inadmissible until the proof has actually been offered on the trial of the plea of prescription.

In this case relator has clearly stated a cause of action when it alleged that there was a balance due it as assignee on loans made to the decedent during his *4lifetime and on which various and sundry payments were made. If opponent can show on the trial of the plea of prescription that even though the indebtedness sued on is prescribed on its face but that prescription has been interrupted by evidence which is legally admissible, we see no reason why opponent should not be entitled to a judgment.

For the reasons assigned, the judgment under review is annulled, the exception of no cause of action is overruled, and this case is remanded to the court below to be proceeded with according to law; the cost of this proceeding to be paid by the respondent.

LAND, J., recused.

O’NIELL, Chief Justice

(dissenting).

It is said in the prevailing opinion in this case that the executrix filed *exceptions*of no cause or right of action and prescription, and that the judge, without passing on the plea of prescription, maintained the exception of no cause of action. As I read and understand the plea which was filed by the executrix, it consists of only one exception, founded upon the two propositions, that the opponent does not disclose any cause or right of action because the opponent does not claim to have any written acknowledgment of the alleged debt of the deceased person, or written promise to pay the alleged debt, and because, on the face of the petition or opposition, and of the account sued on, the opponent’s claim is barred by prescription. The plea, or exception, has reference to article 2278 of the Civil Code, as amended by Act No. 51 of 1882 and Act No. 121 of 1886, which; in the second paragraph, provides that parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same, after prescription has run or been completed. In the fifth and last paragraph of this article of the Civil Code it is declared that, in all of the cases mentioned in this article, the acknowledgment or promise to pay ishall be proved by written evidence signed by the party who is alleged to have made the acknowledgment or promise, or by his agent or attorney in fact, especially authorized in writing to make the acknowledgment or promise to pay.

The plea or exception filed by the executrix is in one document, in which she says that she appears herein solely for the purpose of *this*exception; and then she pleads, first, that the opposition discloses, no right or cause of action, and, second, that the claim as set forth in the opposition is prescribed. It is true that the executrix used two lines in her method of expressing her plea, or exception; but that should not convert the plea, or exception, into two separate or distinct pleas or exceptions, so as to compel the judge to pass judgment separately upon a plea of no cause or right of action, and a plea of prescription. If it should be said that the plea that the opponent did not disclose a cause or right of action and that his claim was on its face barred by prescription should be considered as two pleas, or two exceptions, I respectfully submit that they are so interrelated that the judge could not possibly consider or dispose, of one without at the same time considering and disposing of the other. And that is the way in which the judge did consider and' dispose of the plea or exception. In his written “Reasons for Judgment”, the judge discussed article 2278 of the Civil Code, and came to the conclusion that the opponent had no cause or right of action because, according to that article of the Civil Code, the opponent would not be allowed to introduce parol evidence to take the claim out of prescription, and because the opponent did not claim to have any written acknowledgment or promise to. pay, signed by the alleged debtor. In the concluding paragraph of the judge’s “Reasons for Judgment” he said that he was therefor obliged to maintain the exception of no cause of action because, from the statement annexed to the petition of opposition, and from the allegations in the petition, the. only proof to be offered would be parol evidence. I do not see what more the judge could do in the way of passing upon the plea or exception filed by the executrix. It does not appear in the record in this case that the judge signed any other judgment than that which is expressed in the last paragraph of the “Reasons for Judgment.” That may be accounted for by the fact that the case was brought here by way of a petition for writs of certiorari, prohibition and mandamus, instead of coming up on appeal— as, in my judgment, the case should have come here. If the last paragraph of the judge’s reasons for judgment constitute *5the judgment itself, my opinion is that the judgment disposes of the question of prescription, and is correct.