
    NO. 7521.
    LOUIS PETIT. VS MR AND MRS SAMUEL DEPASS.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION »

St Paul, Judge,

On November 3rd 1910 plaintiff filed this suit claiming the ownership of a certain tomb and asking an injunction and certain damages in connection therewith. On July 16th, 1911, final judgment, the case was continued to he re-assigned. No other proceeding whatever was had in the case until August 1st, when it was placed on the call docket to be fixed and tried. Thereupon defendants moved that the case be dismissed as having been abandoned by plaintiff; and this motion having been allowed the plaintiff appeals.

Act 107 of 1898 amends Artiole 3519 0. C. and provides that when a plaintiff shall at any time before final Judgment allow five years to elapse Hitiét without taking any step to prosecute his claim he shall be considered as having abandoned it.

It Is urged however that as said artiole is found## in the oode under the head of "causes which Interrupt prescription" it applies only when an issue of prescription arises and not otherwise

But so to hold would be to nullify the statute. Nor the issues in a suit are $### to be decided according to the status of things at the time the citation Issues, and hence prescription not accrued at that time can never avail in that suit; so that if a suit may still continue in spite of the five- years inaction it follows that such inaction cannot prejudice the plaintiff and the statute would thus be utterly ineffective. Of course a statute cannot be thus emasculated.

We think the suit was properly dismissed.

The judgment appealed from is therefore affirmed.  