43 La. Ann. 381 | La. | 1891
On Motion to Dismiss.
The opinion of the court was delivered by
The defendant and appellee, in her double capacity of widow in community and of tutrix administering the succession of her deceased husband, moves to dismiss this appeal on the main ground, that the claim is inflated, is fictitious, and whatever it may seriously be, is below the jurisdiction Of this court.
The suit is one sounding in damages, and for §2191.77.
The pith of the elaborate petition in the ease is, that the plaintiff' loaned one DeBlanc §1494.23, secured by mortgage on certain real estate of his, in the parish of Natchitoches, which, by reason of the recorder’s clear certificate, he believed was free from all anterior mortgage, when in fact said property had been previously encumbered and the act had been recorded.
That when the plaintiff came to execute his mortgage, he ascertained the fact that the property was sold by the sheriff for §1050, the net proceeds being absorbed by the claim of the anterior mortgage creditor, which amounted in capital to §1200 exclusive of interest and charges.
That the consequence was that the plaintiff realized nothing on his claim, which amounted to §1494.23 in capital, to which interest ’and attorney’s fees being superadded, forms an aggregate of §2191.77.
It is evident that the widow and heirs.of Kearney, the delinquent recorder, are not liable for the debe due DeBlanc; but if responsible, they can only be held for the damages, or injury sustained by the plaintiff in consequence of the omission by the recorder to mention, in the certificate, the inscription of the preexisting and preinscribed mortgage of §1200 in favor of one Givanovich.
That injury, at best, consists in his having not received, and thus lost, the amount which went to the anterior mortgage creditor, which was less than §1050, the price of adjudication, for that cred
Had there not existed a previous mortgage this balance would have accrued to plaintiff, and his claim would have been reduced to §1199.29, but against DeBlanc.
The only amount for which the widow and heirs of Kearney could be successfully sued would be §992.50. The difference is evidently a fictitious claim superadded -to inflate it so as to bring it, if possible, within the jurisdiction of this court.
It is proper to state that the property was adjudicated to the plaintiff, who can not be heard to say that it was worth more than he paid: If this were true, he would realize the benefit and thus would have no right to complain.
It is useless to cite authorities to show that in a case like this the appeal can not hold. The case must go to another jurisdiction, as is yet in time.
It is therefore ordered and decreed that the appeal herein be dismissed, with costs. ' .
