Burns v. Naughton, 24 La. Ann. 476

Burns v. Naughton

24 La. Ann. 476 | La. | 1872

Lead Opinion

Taliaferro, J.

The defendant appeals from an order of seizure and sale rendered by the Judge of the Fourteenth Judicial .District decreeing the sale of certain mortgaged property belonging to the defendant. The ground upon which the appeal is predicated is, that authentic evidence was not produced before the judge to establish the transfer to the plaintiff of the note upon which the mortgage is alleged to be founded. There is a motion to dismiss the appeal for the reason that a copy of the petition of appeal was sent up iu the transcript, the appellee contending that the original act should have accompanied the record, and refers to several articles of the Code of Practice to sustain this position.

There is no more reason why the written act constituting the petition of appeal and filed as an original act should appear in propria forma before the appellate court instead of a duly certified copy of it, than that the original petition in a suit, or any other original paper of a suit, should be transmitted instead of a certified copy of such *477original. The terms used in the articles of the Code of Practice to which we are referred, might perhaps authorize the transmission of the original petition of appeal with the transcript; but that it is imperatively required that it should be so transmitted we do not admit. The purpose of 'the lawmaker, we conclude, would in this regard be as substantially complied with by the transmission in the record of a duly authenticated copy of the petition of appeal as by the transmission of the original act itself.

The motion to dismiss is overruled.

Opinion on the Merits

On the Merits.

The plaintiff is third holder of the note upon which the mortgage he seeks to enforce is founded. He alleges that he holds the note under the blank indorsement of the -payee. There is no authentic evidence of the transfer shown. This was necessary in the proceeding via execntiva which the plaintiff has chosen to adopt. 6 An 477, 9 An. 310, 11 An. 4, ibid 35, 19 An. 141. The order was therefore improperly rendered.

It is therefore ordered, adjudged and decreed that the order of seizure and sale rendered in this case be annulled and set aside.

It is further ordered that this case, be dismissed as of non-suit, the plaintiff and appellee paying costs in both courts.