State ex rel. Watkins v. Baten

*1539 The opinion of the court was delivered by McEnery, J. The relator applies for a mandamus, under the supervisory jurisdiction of this court, to compel the respondent judge to proceed with a suit filed by him, aud to enter up judgment in the case. In the suit of relator against one Gilford Sampson, filed in the respondent’s court, the magistrate dismissed- the case because of want of jurisdiction. This order of dismissal was on the motion of the magistrate who took notice of the fact that the obligation sued on was more than five years’ standing, and in his opinion the obligation was prescribed, and as there was nothing due he could not entertain the suit. In his return he alleges that he bases his action upon an opinion and decree recently rendered by the Circuit Court of Appeals in this circuit. We are inclined to believe that the respondent judge is in error in interpreting some decree of that court. Prescription can not be supplied by the judge. It must be specially pleaded by the defendant. In this case the obligation sued on was for the sum of ten dollars. When it was executed the defendant waived citation and confessed judgment for the amount. The waiving of citation was a personal privilege, which he could do in advance, and he could confess judgment at the same time. The hardship, if any, is of his own making. Stein vs. Brunner, 42 An. 72. The duty of the judge was very plain. In the absence of any appearance of the defendant, or any plea filed by him, to enter judgment against the defendant. Id. The relief prayed for is granted, and the mandamus made peremptory.