Dennistoun v. Rist

Campbell, J. (Voorhies, J., and Buchanan, J., absent.) The appellants rely on their plea of prescription. The note sued on, matured in January, 1841. An action was brought in 1845, which terminated in November of that year, by a judgment in these words: “ On motion of Mb Vea, of counsel for plaintiffs, it is orderd,” etc., “ that judgment be rendered against the plaintiffs, as in case of nonsuit, with costs.” The present suit was brought in March, 1846. The question is, whether plaintiffs lost by their course at the trial of the previous action, the benefit of an interruption of prescription, which they would otherwise unquestionably have had. The Article 3484, treats of the citation of the possessor, as a legal interruption. The benefit of the rule is extended to creditors, by Articles 351;6, 3517. It may he assumed then, that the case of the debtor as well as that of the pos • sessor is comprehended by the Article 3485, which says: “If the plaintiff after having made his demand, abandons or discontinues it, the interruption shall be considered as never having happened.” The appellants insist that the judgment as in case of nonsuit, having been rendered on motion of plaintiff’s counsel, amounts to a voluntary abandonment or discontinuance of the demand, and therefore, no interruption of prescription has happened. They have arrived at this conclusion, though with much hesitation, Although the distinction between a voluntary and involuntary nonsuit, as it exists at common law, is not with us, established in direct terms; yet it may be fairly inferred and has been frequently recognized by the court; and we are unable to see any essential difference between a discontinuance as known in our practice and a voluntary nonsuit. In the case of Dunn and others v. Kenney, 11 R. 249, prescription was relied upon. It was contended by the plaintiffs as in this case, that the prescription had been interrupted by a previous action. The record of the first suit contained the following entry: “ This cause came on to-day for trial before a jury, when the plaintiffs having offered no proof in support of their claim, it is adjudged and decreed that judgment of nonsuit be entered against plaintiffs, and that they pay costs of suit.” In commenting on this, Judge Bullard, says: “If the record had shown that a jury was empannelled, we might have inferred that the nonsuit was voluntary, because the defendant, in cases tried by a jury, has a right to a verdict, unless the plaintiff chose to suffer a nonsuit. But that does not appear in this case.” In the case of Smith v. Gibbon, 6 Ann. 684, plaintiff having instituted suit to recover a tract of land, at the trial took a voluntary nonsuit, and subsequently renewed his suit. It was held by the court, Preston, pronouncing its opinion, that the first suit was voluntarily abandoned and did not interrupt prescription. Although it is not impossible from the matters appearing on the record that plaintiffs fearing they were not able to make out their case, and that judgment would therefore be rendered in favor of defendants, applied for a nonsuit, not with the intention of abandoning their claim, but on the contrary, with the intention of renewing it under more favorable auspices, still, under the autho [466] rity of the cases aboye cited, we are constrained to regard their act as a volun' tary discontinuance in the sense of Article 3485, of the Civil Code. It is therefore adjudged and decreed, that the judgment of the District Court be reversed and annulled, and that there be judgment in favor of the defendants. The costs of both courts to be paid by plaintiifs and appellees.