Summary
In Patterson v. Weber Marine, 630 So.2d 687 (La.1993), the Louisiana Supreme Court considered a situation where a lawsuit was filed within the prescriptive period in an improper venue, and the defendants were not served until after the prescriptive period had run—precisely the same facts as in the case sub judice.
Summary of this case from Moody ex rel. Moody v. MurrayOpinion
No. 93-C-1764
November 5, 1993
Writ granted. The judgment of the court of appeal, which affirmed the district court's judgment granting defendant's motion for summary judgment on the basis of prescription, is reversed. 621 So.2d 216 (1993). The decision of this court in Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972), is dispositive of the prescription issue presented here.
As in the instant case, the plaintiff in Foster, supra, filed suit within the prescriptive period in an improper venue and failed to serve the defendant within the prescriptive period. However, defendant waived the right to plead improper venue since no declinatory exception was filed prior to preliminary default. Defendant subsequently filed an exception of prescription. We construed former LSA-R.S. 9:5801 (present LSA-C.C. art. 3462), providing that prescription is interrupted by the commencement of a civil action in a court of competent jurisdiction, to mean that "the filing of the suit interrupts prescription if, at the time the exception pleading prescription is filed, the court is of competent jurisdiction." 270 So.2d at 529. Since venue was proper as to the defendant at the time he filed his plea of prescription, the filing of the action in (thus) a court of competent jurisdiction and venue interrupted prescription as to the defendant.
The summary judgment was also based on grounds other than prescription and consideration of plaintiff's assignments of error as to the other grounds was pretermitted by the court of appeal. Accordingly, we remand this case to the court of appeal for consideration of the other issues raised on appeal.