Opinion
No. 26796.
April 9, 1928.
Appeal from Civil District Court, Parish of Orleans; M.M. Boatner, Judge.
Action by Bernard Cassou against H.J. Robbert. From a judgment of dismissal, plaintiff appeals. Affirmed.
Emile Pomes, of New Orleans, for appellant.
McCloskey Benedict, of New Orleans, for appellee.
The defendant is sued as the indorser of a promissory note for $3,000, dated November 18, 1918, payable on demand, made by one Fernand Cavelier to his order, and by himself also indorsed. In the petition it is alleged, among other things, that in April, 1920, plaintiff sued defendant on the note, but discontinued the suit after exceptions had been filed thereto. The present action was instituted on March 10, 1924. Defendant pleaded the prescription of five years. The court below maintained the plea, and dismissed the suit. Plaintiff has appealed.
The judgment appealed from is correct. An action on a promissory note is prescribed by five years from its maturity. Civ. Code, art. 3540. Where a note is payable on demand, this prescription runs from the date of the note, and not from the demand. Darby v. Darby, 120 La. 847, 45 So. 747, 14 L.R.A. (N.S.) 1208, 14 Ann. Cas. 805. A voluntary discontinuance of a prior suit on a note does not interrupt prescription. Civ. Code, art. 3519.
For the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellant.