372 So. 2d 221 | La. Ct. App. | 1978
Lead Opinion
Plaintiffs in rule, Leo J. Morgan and Ul-ger J. Morgan, appeal from the judgment vacating their rule and dismissing their demands to cancel' a judgment under the provisions of LSA-R.S. 9:5166.
The sole issue is the propriety of that judgment. We reverse.
In 1968, defendant in rule, Paul Braud, obtained a judgment against the two Morgans. In 1969, Leo Morgan was granted a discharge in bankruptcy. In 1971 Ulger Morgan was granted a discharge in bankruptcy. The obligation to Braud was included in the schedules and personal liability was admittedly removed by the discharge. In 1973 Ulger Morgan filed a rule under LSA-R.S. 9:5166
Appellee first contends that the vacating and recalling of the rule in 1973 should be res judicata and prevent a consideration of this rule. The evidence is uncon-troverted that the rule was recalled and vacated on motion of the attorney for Ulger Morgan, and the recall was ordered without consideration of the merits. The judgment did not vacate and recall with prejudice. Under these circumstances, we find the plea of res judicata without application.
Considerable discussion has been given to the question of burden of proof and the possible conflict in the effect of C.C.P. 2031
On the trial of the rule both appellants and appellee rely on the schedules filed in the bankruptcy proceeding. Leo J. Morgan listed a home worth $8,000.00 with a mortgage of $9,350.00. Some handwritten figures are unexplained. We find the creditor has not shown a secured interest in the property affected by the judgment.
Ulger J. Morgan’s schedule showed a first mortgage with a balance of $10,892.40 and a second mortgage with a balance of $3,314.64 on property valued at $13,000.00. Again the creditor has not shown a secured interest in the property affected by the judgment. See Kohnke v. Justice, 280 So.2d 665 (La.App. 4th Cir. 1973).
Our decision does render the matter of the renewal of the judgment somewhat moot but the procedural aspects render it advisable for us to remand the case.
For these reasons the judgment appealed is reversed and there is judgment herein in favor of the plaintiffs in rule, Leo J. Morgan and Ulger Morgan, and against defendants in rule, Paul H. Braud and H. M. Cannon, Clerk of Court ordering the cancellation of the judgment rendered in the matter entitled “Paul H. Braud v. Leo J. Morgan and Ulger J. Morgan”, No. 124,266 on the docket of the Nineteenth Judicial District Court, East Baton Rouge Parish, dated February 27, 1968 and -of record in Judgment Book 68 Folio 366 of the records of East Baton Rouge Parish. The notice of Lis Pendens filed on April 5, 1978 is also ordered cancelled. The costs in both courts are assessed against defendant in rule, Paul H. Braud.
The case is remanded for further proceedings not inconsistent with these proceedings.
. LSA-R.S. 9:5166:
“Upon rule to show cause by any interested party against the clerk of court and ex officio recorder of mortgages of the several parishes and the recorder of mortgages for the parish of Orleans, the judgment creditor and a judgment debtor discharged in bankruptcy, the court shall order the cancellation of the inscription of any dischargeable judgment rendered twelve months previously unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment, or any judgment rendered in a tort proceeding wherein the judgment debtor’s liability arose out of his wilful negligence, or any judgment for taxes due or any other judgment otherwise not discharged in bankruptcy.”
. C.C.P. 2031:
“A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.
“The judgment debtor shall be made a defendant in the proceeding to revive the judgment, unless he is dead, in which event his legal representative or legal successor shall be made a defendant.
“A judgment shall be rendered in such a proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived.”
Rehearing
ON REHEARING
We granted a rehearing on the assertion of plaintiff-appellee that he had a secured interest in the property of Ulger J. Morgan because his judgment recorded February 27, 1968 antedated the second mortgage given in September, 1969, listed by Morgan in his bankruptcy schedule.
Plaintiff-appellee is correct in his facts but not in his conclusion. It is true that his judicial mortgage antedated the second mortgage. However, there were several judgments listed in the bankruptcy schedules practically the only evidence before us that antedated his judgment. As of the date of the bankruptcy we find the following ahead of plaintiff’s mortgage:
First Mortgage, May, 1963 $10,892.42
Judgment, Olinde Hardware & 1,184.26 Supply Co., January, 1965
Judgment, E. J. Gonzales Finance 1,463.66 Co., April, 1965
Judgment, Royal Furniture, 330.02 April, 1965
Total $13,870.36
The value of the security is listed at $13,000.00. Ergo, plaintiff-appellee had no secured interest.
For these reasons, our initial decision is reinstated and made the judgment of this court.
