New Orleans Canal & Banking Co. v. Martin

Wyly, J. The defendant has appealed from a judgment confirming a default against her and rendering executory the mortgage securing, the instrument sued on. She has filed in this court the plea of prescription, which, upon tha. face of the papers, seems to be an effectual bar to the recovery of the demand of the plaintiff. There is no interruption or .renunciation of prescription shown, and we must conclude that the plea is well taken. As the plea has been filed in this court, and as the plaintiff has asked that the case be remanded if the plea should appear to be well taken, we will remand the case for the purpose of having it judicially ascertained whether there has been an interruption or renunciation of prescription. The defendant is not estopped from pleading prescription in this court, as contended for by the plaintiff, because in the judgment con [211] firming the default there is a clause staying execution for one year. We can not say that a party who lias entered no appearance and against whom a default has been confirmed, has done an act in the progress of a case in the court below estopping him from pleading prescription in this court. It is therefore ordeied that the judgment appealed from be annulled, and that this case be remanded for new trial, and to be proceeded in according to law and the views herein expressed. It is further ordered that appellee pay costs of appeal.