Turner, Wilson & Co. v. McMain

The opinion of the court was delivered by Howell, J. In May, 1855, plaintiffs instituted this suit on a note for §5345 53 against the makers, W. W. McMain, F. Vose, and Mrs. L. C. Frierson. Citation was served on McMain only. The case was submitted to the judge in May, 1857, who ordered it to “be put back for further proceedings.” In 1873 it was again put on the issue docket, Mr. and Mrs. Frierson cited, default taken as to McMain, prescription filed by Mrs. Frierson, other proceedings had, and judgment rendered con-. demning McMain to pay the amount of the note and interest, and maintaining the prescription pleaded by Mrs. Frierson, and from the latter part of the decree plaintiffs appealed. [299] It is contended on their behalf that citation on MeMain, one of the obligors in sólido, was a continuous interruption of prescription as to his co-obligors. Article 3552 of the Revised Civil Code provides that “a citation served upon a debtor in solido, or his acknowledgement of the debt, interrupts the prescription with regard to all others, and oven their heirs.” This only declares the interruption of prescription as to co-debtors. Interruption and suspension are different, and the Code, in treating of the suspension of prescription, does not include the service of citation as one of the causes with regard to co-debtors. As to those who are not in court, the citation operates only as an interruption of the prescription which begins again to run. This is supported by the fact that the law gives the same effect to both the service of citation and the acknowledgment of the debt. It has never been contended that an acknowledgment is a continuous interruption or a suspension of prescription. We think the court a qua did not err in sustaining the plea. Judgment affirmed.