SUN FINANCE COMPANY, INC. v. Willie JACKSON, et al.
No. 88-C-0081.
Supreme Court of Louisiana.
May 23, 1988.
525 So.2d 532
DENNIS, Justice.
Stephen 6. Sklamba, Clement F. Perschall, Jr., Sklamba & Thomas, Metairie, for applicant.
James Wattigny, Kemp & Mclntyre, Hammond, for respondents.
DENNIS, Justice.*
Williе and Nancy Bell Jackson first executed a mortgage upon their immovable propеrty in Tangipahoa Parish on September 9, 1981 to secure their indebtedness to
A subsequent mortgage on the same propеrty was executed by the Jacksons on October 8, 1982 to secure their indebtedness to Commerсial Federal Savings and Loan Association in the amount of $21,350 evidenced by their note of the same date delivered to the mortgagee. This subsequent mortgage was duly recorded on Oсtober 15, 1982.
After the Jacksons fell into arrears on their payments on the mortgage note acquired by Sun Finance, Sun Finance instituted an ordinary proceeding to enforce the note and mortgage. The petition alleged that the defendants were indebted to Sun Finance in the amount of $5,977.37, plus interests, costs, attorney fees, and prayed for recognition and maintеnance of the mortgage recorded November 13, 1981. A default judgment in this amount was taken and confirmed against the defendants, but the judgment failed to include any recognition of the mortgage. After Sun Finance unsuccessfully attempted to execute the judgment by garnishing the wages of Nanсy Bell Jackson, it proceeded to have the mortgaged property seized and sоld under a writ of fieri facias. At the Sheriffs sale, Commercial Federal Savings and Loan Association intervened, asserting that its mortgage was superior to Sun Finance‘s, and that it was thereforе entitled to the net proceeds of the sale in preference to Sun Finance. Bеcause of the dispute over the proceeds of the sale, the sheriff deposited them into the registry of the court Subsequent to a hearing on this matter, the trial court dismissed the intervеntion and awarded the proceeds to Sun Finance. Commercial Federal appealed.
The court of appeal reversed, holding that because Sun Finance rеquested recognition of its mortgage in its prior suit against the Jacksons and the judgment failed to rеcognize it, this demand had been rejected by the trial court. Consequently, the court of aрpeal concluded, Sun Finance lost its conventional mortgage and was relegatеd to a claim under its judicial mortgage rendered and recorded in 1984, which was outranked by Commеrcial Federal‘s conventional mortgage recorded in 1982. Sun Finance Company, Inc. v. Jackson, 515 So.2d 540 (La.App. 1st Cir.1987). We reverse.
It is true as a general rule that where a judgment is silent with respect to any demand which was an issue in the case under the plеadings such silence constitutes an absolute rejection of such demand. Succession of Foster, 240 La. 269, 122 So. 2d 96, 98-99 (1960); Perot‘s Estate v. Perot, 177 La. 640, 148 So. 903, 904 (1933); Soniat v. Whitmer, 141 La. 235, 74 So. 916, 917-18 (1916); Villars v. Faivre, 36 La. Ann. 398, 399-401 (1884); Melde Tile Roofing Co., Inc. v. Compact Homes, Inc., 92 So.2d 735, 736 (La.App.Orl.1957); Williams v. Ralph R. Miller Shows, 15 So.2d 249, 251-53 (La.App. 1st Cir.1943); Lacaze v. Hardee, 7 So.2d 719, 721-23 (La.App. 2nd Cir.1941); Rains v. Thomason & Champion, 17 La.App. 120, 135 So. 92, 94 (La.App. 2nd Cir.1931). See Harrell, Developments in the Law, 1984-85—Security Devices, 46 La.L.Rev. 695, 697 (1986).
However, the authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be betwеen the same parties, and formed by them against each other in the same quality.
In this case, Commercial Federal in effect seeks to assert the special defense of rеs judicata against Sun Finance‘s claim under its conventional mortgage, contending that the аuthority of the thing adjudged in the prior suit, viz., non-recognition
For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.
REVERSED; TRIAL COURT JUDMENT REINSTATED.