Thank You For Submiting Feedback!
Whenever a plaintiff makes his demand at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same. La. Civ. Code art. 3519 (1870). Under art. 3519, two exceptions to the rule of five year abandonment are recognized: (1) when the failure to prosecute is caused by circumstances beyond plaintiff's control, and (2) when the defendant waives his right to plead abandonment by taking any action in the case inconsistent with an intent to treat the case as abandoned.
Plaintiff oil companies filed motions and orders to consolidate the cases. The plaintiff and the defendant, the state revenue collector, also filed cross motions for summary judgment and joint stipulations of facts, accompanied by memoranda supporting motions for summary judgment. The cross motions for summary judgment asserted that there was no issue as to the material facts and moved for cross rules to show cause why summary judgment should not be entered in each of the mover's favor. The judge set a hearing date on the joint motions for summary judgment, and noted that the cases appeared to have been abandoned for want of prosecution. The defendant filed motions to dismiss all the cases, and the judge signed an order dismissing the cases. The appeals court affirmed the trial judge. Plaintiffs sought further review.
Did the submission of an abandoned suit for decision constitute a waiver by defendant revenue collector of his right to seek a dismissal for failure to prosecute under La. Code Civ. Proc. Ann. art. 561?
On further review, the court reversed and remanded. The filing of cross motions for summary judgment constituted a waiver by defendant of his right to have the suits dismissed as abandoned. The court noted that the trial judge was correct in observing that each of the cases had been abandoned when they were presented for consolidation, transfer, and summary judgment. Therefore, defendant had the right to file a motion to declare the suits abandoned for failure to prosecute, but waived that right by filing motions to dismiss after he had joined in filing a motion for summary judgment and stipulations of fact.