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Bell v. Kreider11/30/2004
to prevent a default judgment from being rendered, "would allow a mere technicality to prevent the dismissal of a case that clearly warrants dismissal."
We cannot determine the intent behind the filing of the answer, however, from the record before us. We can only determine that it was filed and that it is the type of pleading that does, in fact, hasten a lawsuit toward judgment. As such, although it was filed past the expiration of the three-year abandonment period, on its face it appears to be a waiver by the defendant of the accrual of abandonment.
La.C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Clark, 00-3010, p. 8, 785 So.2d at 785. Given that dismissal is the harshest of remedies, the general rule is that any reasonable doubt should be resolved against dismissal for abandonment. Clark, 00-3010, p. 10, 785 So.2d at 787. Accordingly, we find the trial court erred in denying plaintiffs' motion to vacate the order of dismissal.
For the foregoing reasons, the judgment is reversed. Judgment is rendered granting the motion to vacate the judgment of dismissal and the matter is remanded for further proceedings. Costs of appeal are assessed against the appellees.
REVERSED, RENDERED AND REMANDED
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