Prater v. Craighead

Citations

• 118 La. 627
• 43 So. 258
• 1907 La. LEXIS 775

Syllabus

<p>1. Appeaeance — Application to Bond — Effect.</p> <p>Plaintiff, simultaneously with filing his petition in a petitory action, applied for and obtained an order for a sequestration, under which the sheriff claimed to have executed the writ by taking possession of the property. The defendant thereafter filed an application to bond tlie property, declaring in the same that he appeared solely for the purpose of the application, without acknowledging the validity of the writ nor the regularity of its service and execution, and without waiving his right to except to the writ of citation and reserving all other exceptions, pleas, and defenses. Under permission from the court he bonded the property.</p> <p>He excepted later that he had not been cited. He had not at the time of the bonding in fact been cited. The court overruled the exception, on the ground that he had waived citation by making an appearance bond. Held that, whatever effect resulted from the appearance to bond, it had no relation back of the date of the application. The fact did not entitle the plaintiff to claim that defendant had been previously cited, when such was not the fact.</p> <p>2. Taxation — Tax Titles — Petitoby Action —Peescbiption — Running of Statute — Commencement of Action.</p> <p>Defendant, in the petitory action, set up title to the property claimed by plaintiff under a tax sale, and pleaded the prescription of three years provided for by article 233 of the Constitution of 1898. The court correctly sustained the plea. At the time of the bonding, prescription had accrued.</p> <p>3. Same.</p> <p>The bringing of a petitory action by a plaintiff does not, by citation of the defendant therein, interrupt the running of prescription, under article 233 of the Constitution of 1898, in favor of the purchaser at the sale, unless the tax sale under which the defendant holds the property is therein attacked. Nor does the taking of the property out of the possession of the defendant, and placing it i