Opinion

Bertrand v. Knox

  • 39 La. Ann. 431
Court
Supreme Court of Louisiana
Filed
Apr 15, 1887
Status
Published
Author
Fenner
On the bench
Bermudez, Fenner, Podrá, Todd
Cited by
1 cases

The opinion

Dissenting Opinion.

Fenner, J.

I dissent from the opinion and decree herein.

1st. The same prescription was vehemently urged by Knox when the case was here before, and, if the views now taken are sound, should they have been maintained? It was useless to remand the case to perfect the citation of Mrs. Bory, if the prescription pleaded by Knox was then a bar to the further prosecution of the suit under any subsequent proceedings.

2d. The citation of Mrs. Bory, though she was not, at the time of service, authorized either by the Court or her husband, even if not valid as a basis for proceedings and judgment, was, under well established jurisprudence, sufficient to interrupt prescription. Bush vs. Decuir, 11 Ann. 503; Satterlee vs. Morgan, 33 Ann. 846, and authorities there cited, in not one of which was the citation sufficient to make the. defendant a party, or to bring him into court.

3d. The suit is one by a creditor to annul a judgment obtained by Knox vs. Mrs, Bory. There is no dispute that Knox was cited in *439 time, and even if Mrs. Bory was not, she is now cited, and does not plead prescription. There is no principle or authority supporting the right of Knox to interpose the plea for his co-defendant.

Art. 3466 C. C. and the decisions based thereon apply to a class of cases too different from this to give them the slightest application.

Todd, J., concurs in this opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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