
    Court of Appeal -- Parish of Orleans
    No. 7708
    John Bergstrom versus Henry Spillman
    By Flnkel spiel, -T.
   Bt Dintelspiel, J.

This suit is instituted claiming damages in the sum of $1500.00, which plaintiff asserts he has suffered by reason of having oeen publicly defamed by defendant,•Spillman, now deceased. The defamation consisting in plaintiff having frequently been called vile and vulgar names by defendant in the presence of a number of witnesses.

The damages claimed by plaintiff is to recover for the shame, humiliation and obloquy, alleged to have been suffered by him through the defamation of his character by the defendant, Spillman.

The petition in this case was filed in the Civil District Court on the 8th of October, 1914, and on the same day a citation and a copy of the petition was issued by the Cleric of Court, same was received by the Sheriff on bctober 12, 1914. neither the citation nor the copy of petition was served upon the defendant Spillman, who, as alleged in the supplemental petition filed in this case on September 2, 1915, had died, but whose succession had been opened, and in which succession a testamentary executri» had been appointed, and who by this supplemental petition was made a party defendant in this suit.

The record further shov/s that on September 2, 191 , a citation and a copy of the supplemental petition was issued by the Clerk of the Civil District Court, directed to the Succession of Henry Spillman, through Eloise Spillman, Testamentary Executrix, and on September 2, 1915, the said citation and supplemental petition, as well as the original citation and the original petition, were personally served on said Testamentary Exeoutrix^on the 6th of September, 1915* The Executrix filed exceptions to the suit, relying chiefly on the exception that no valid citation had issued in thhs-cause. These exceptions do not appear to have been fixed for trial until December 18, 1918, more than three years thereafter, and were tried on December 30th of the same year, and the exception to the validity of the citation maintained and citation annulled.

Subsequently, on July 31, 1919, a new oitation was issued, which was served upon the same day, also upon the Testamentary Executrix of the Succession. On February 3, 1919, the defendant Executrix further exoepted to plaintiff's petition, first on the ground that the same discloses no cause of action against the estate, and upon the further ground, second, that the action sued on is prescribed by the prescription of one year.

The plea of prescription having been maintained by the Judge of the Court a quo, the plaintiff has appealed to this Court.

There is nothing shown in this record to indioate why the first exception as to the validity of the oitation of September 2, 1915, was maintained by the Judge a quo, but as both counsel in their briefs set up the faot that tame «as held to be invalid for the reason that the Clerk of the Civil District Court failed to insert the number 5 after the printed 191 shown or. the face of the citation, and which was to indicate the year 3n which same had been issued, ar.J for that reason alone the Judge caintained the nullity of the oitation.

In as much as plaintiff herein nade no objection to the Judgment of the Judge a quo decreeing citation null, but on the contrary has .-.oqui*ced In said Judgment and bad a new citation to issue, we are not called -pon to pass upon the correctness vel non of the ristrict Court's action upon ;hat issue

The record in thi» case aleo falla to enlighten u§ aa to the reaaon for which the Judge a quo maintained the exception of prescription, but again referring to the briefa filed in thia suit, we find aaid exception was maintained for the reaaon that the original oitation having been declared invalid or null, there had been no oitation whatever until that of January 31, 1S19, which having been aerved more than five year3 after the cauae of action ie aaid to have accrued, and more than four yeara after the filing of the original petition, therefore came wi'thin the prescription of one year, aa «at out by. Civil Code for instituting suits of this charactar.

Counsel for defendant in support of the ruling of the "curt a quo rel! «■« mainly upon the oaae of Schwartz vs. Lake, reported in 101 l.,-o3, libere the Court held: "That a citition not signal by the clerk was r.o oitation at all, hnr.oe could net interrupt prescription."

A careful reading of that -decision, and particularly the citation itself, copy of which in full is set out in the opinion of the Court, shows that not only was that citation not signed by the clerk, 'out not a single date had been filled in by him *nl therefore thia citation waa properly held by the to have been no citation whatsoever •-nl naturally -could not serve us an interruption of prescription.

Tn the r.ohvfarta case above r ef erred to, the Court did make a distinction between citations serving as a basis «for judgment and citations for the purpose of interrupting prescription, and in so doing pointing out a long line of the Court's opinions, none of which were ever overruled by the Court, but the judgment in the Schwartz case being based only on the ground that the oitation in question had not been signed by the clerk, notwithstanding the fact that it also had specially called to its attention that the same citation hors no date whatsoever. Therefore, it is sc very doubtful question, in our opinion, had the absence of date from the Sclv.-arta citation, been the only question involved, whether or not the Court would have followed the long line of decisions referred to by it and held that such a citation, though net technically perfect in form, was nevertheless sufficient for the purpose of interrupting prescription.

As a matter of faot, since the decision relied upon by oounsel for defendant, the Supreme Court has had ocoasion to pass upon a number of citations which have not strictly complied with the requirements of Article 179 of the Code of Practice, and in each of the cases referred to the Court maintained the citation sufficient for the purpose of interrupting prescription. 118 La. 344-494; 132 La. 873.

The only fault or informality in the citation issued in this case is the absence of the number 5 after the printed 191. Otherwise, it is perfect as to form and in everyAespect, both the day, the month being correctly set ouA®W,t2ie return of the Sheriff, which shows the day, month S V and year that same was served. Added to this is the fact that this citation was issued with a supplemental petition, the sole object of whioh was to make proper parties to this suit after the death of the defendant, and at the time it wa3 served the original citation, perfect in every respect, was also served upon the Testamentary Executrix of this Suooesslon.

Under these circumstances, as determined by us, and in view of the long line of decisions extending from 10 Rob. 133 to 133 La. 873, we oannot hold that the citation complained of was so utterly defeotive as to form, so as to prevent it as acting as an interruption of prescription.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court, maintaining the plea of prescription of one year, set up 'oy the Executrix, Eloise Spillman, in the Succession of Henry Spillman, be annulled, set aiide and reversed; and it is further ordered, adjudged and decreed that this case he remanded to the District Court for further proceedings, according to lavf, and the oosts of this Court to be paid by Eloise Spillman, the Executrix of the Succession of Henry Spillman. Costs of the District Court to await final determination of the suit.

Judgment reversed; case remanded.  