Opinion
No. 85-C-1531.
October 21, 1985.
In re: Osborne, Milton, Jr.; Applying for Writ of Certiorari and/or Review; to the Court of Appeal, First Circuit, Number CA 84 0517; Parish of East Baton Rouge 19th Judicial District Court Div. "H" Number 261,717.
Granted. The contention of laches may not be raised by exception; assuming without deciding that laches is available in Louisiana, it may be urged only as an affirmative defense. See LSA-C.C.P. art. 1005, Comment (e). The judgments of the trial court and Court of Appeal are vacated and the case is remanded for further proceedings according to law.
DIXON, C.J., concurs in the grant and reversal and remand. There is no "laches" in La., C.C. 3457. I would remand to determine whether plaintiff abandoned his position or waived his rights.
CALOGERO, J., would simply grant the writ and bring the case up.