#### BRAZIER v. PRIDE OF DONALDSONVILLE TABERNACLE NO. 40.* SAME v. LANCELOT LODGE NO. 38, KNIGHTS OF PYTHIAS.

Nos. 1823, 1824.

Court of Appeal of Louisiana, First Circuit

July 27, 1938.

For original decisions, see La.App., 180 So. 874, and 180 So. 877.

Walter Lemann, of Donaldsonville, for appellants.

George R. Blum and S. A. LeBlanc Jr., both of Donaldsonville, for appellee.

*

 Rehearing denied July 27, 1938; writ of error refused Oct. 31, 1938.

SACHSE, Judge ad hoc.

We have heretofore rendered a decision in this matter affirming the decision of the trial Court in each of these cases. A rehearing has been applied for and we have carefully considered the authorities relied upon in the brief submitted in support thereof, particularly the case of Gilmore v. Schenck, 115 La. 386, 402, 39 So. 40, but we do not think these authorities are pertinent to the question of prescription. We agree that if no question of prescription is raised in the trial Court such a plea may be filed for the first time in the appellate Court, if based on the face of the pleadings, and the Court may pass upon the plea or, if the plaintiff desires an opportunity to show the interruption of prescription, may-remand the case to the trial Court for trial on that point.

In this case, however, the question of prescription was definitely raised by the petition of the plaintiff in each case and each petition contained allegations of fact to show the interruption of prescription. We do not believe we have the right to say thát the trial Court did not hear evidence on this point nor do we believe we have the right to say that such evidence was insufficient, in the absence of any showing as to what evidence was introduced; unless, indeed, we are prepared to say that since a plea of prescription is personal to the defendant, the trial Court did not have the right to consider evidence of the interruption of prescription, and that if it did so, it was passing upon a moot question. We have made an examination of the authorities on this point and have found but little. We have, however, found two early cases which we believe furnish the proper guide to the solution of this question.

In Lopez v. Bergel, 7 La. 178, a judgment was obtained upon a promissory note which was prescribed on its face. The judgment was taken by default. An appeal was taken to the Supreme Court and prescription was there urged. In that case the record indicated that evidence of one witness was taken as to interruption of prescription. The Court, through Justice Martin, declared that under Article 360 of the Code of Practice, all matters were placed at issue by the default but that a presumption of correctness also arose by the failure of defendant to plead, and affirmed the judgment of the trial Court. The significance of the case, of course, is the necessary holding that the trial Court did have the right to consider evidence interrupting prescription even though a plea of prescription had not been filed and judgment was taken by default.

In New Orleans Canal & Banking Co. v. Mrs. Martin, 23 La.Ann. 210, a judgment was again taken by default and again the question of prescription was raised on appeal. The Court there found: “There is no interruption or renunciation of prescription shown, and we must conclude that the plea is well taken.”

We think these two cases mean that if the plaintiff had not affirmatively shown by his pleadings that prescription had been interrupted, we would be bound to pass upon the plea of prescription now or return the case to the trial Court, but that the plaintiff had the right so to plead that he would be able to try his case one time only and that having done so, the trial *132Court could properly consider the issues raised by the plaintiff.

We therefore conclude that the issue was properly before the Court, that a presumption exists that the trial Court acted properly, and in the absence of anything in the record to rebut that presumption, we ought to sustain the judgment of the trial Court. We therefore deny a rehearing in this case.

Rehearing denied.

LE BLANC, recused.