37 La. Ann. 387 | La. | 1885
Lead Opinion
On Rule xo Erase Mortoaue.
The opinion of the Court was delivered by
Plaintiff, having issued execution on a judgment which he holds against the defendant, in the sum of $350.00, proceeded by
He has taken this appeal from a judgment discharging his rule, on the ground that it was not the proper proceeding, and that it appeared that the defendant’s daughter had a proprietary interest in the property seized under plaintiff’s execution.
The motion to dismiss presents two points:
1. That the bond of appeal is not signed by the appellant, but by the security only. The point is not well taken, and has long since been disposed of in our jurisprudence. It is now elementary that the appeal bond is sufficient, if signed by the surety alone. Murell vs. Murell, 33 Ann. 1235, and authorities therein cited.
2. It is next contended that the amount of the judgment in execution being the test of jurisdiction, this Court is clearly without jurisdiction over the matter in dispute.
The effect of the judgment on the rule, if decided in favor of plaintiff, would be the cancellation or erasure of a mortgage exceeding four thousand dollars in amount. The validity vel non of that mortgage is the real matter in dispute between the plaintiff and the holder of the legal mortgage, which the former wishes to cancel, and which the latter seeks to maintain. This question is entirely covered by our decision in the case of the State ex rel. Blossvs. Judges of the Court of Appeals, 33 Ann. 1351. The motion to dismiss is therefore overruled.
Opinion on the Merits
On this Merits.
Under our understanding of the pleadings the only issue involved in this appeal is the right of plaintiff to proceeed by rule for the purpose of having the legal mortgage cancelled and erased.
There is no force in the position taken bv Ophelia Williams, the defendant’s daughter, the mortgagee, that as she was not a party to the original suit, which resulted in the judgment against her father, she could not be brought into court otherwise than by petition and citation, or that the rule is premature because it was brought before the sale of the property or previous to any act on her part looking to a claim of preference on the property or its proceeds.
A judgment creditor has the undoubted legal right to remove obstacles, such as mortgages which may stand in the way of satisfying Ms judgment—and our jurisprudence has firmly settled the practice
The district judge committed a grievous error, in the light of correct practice, in considering, under the only issue which was tendered by plaintiff, that ground of Ophelia Williams’ exception which suggested her alleged rights of ownership to the property under seizure. She cannot smuggle such a question under an issue of the validity of her mortgage. Under his rule, plaintiff has the legal right to discuss her mortgage claims, even if they should affect, as she contends, but one-half of the property now under seizure.
The judgment appealed from is therefore reversed; it is now ordered, that plaintiff’s rule be reinstated and that the cause be remanded to the lower court to be proceeded with according to law and to the views herein expressed. Costs of appeal to be paid by defendants, costs of the rule to abide the final determination of the same.
Rehearing refused.
