Breithaupt v. Breithaupt

Louisiana Court of Appeal

Breithaupt v. Breithaupt

182 So. 523, 1938 La. App. LEXIS 338

CourtLouisiana Court of Appeal

DecidedJune 1, 1938

DocketNo. 5682.

StatusPublished

This text of 182 So. 523 (Breithaupt v. Breithaupt) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Breithaupt v. Breithaupt, 182 So. 523, 1938 La. App. LEXIS 338 (La. Ct. App. 1938).

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Opinion

TALIAFERRO, Judge.

Defendant and his daughter, Mrs. Mattie Breithaupt Walker, appealed sus-pensively from an order of executory proc *524 ess signed by the Clerk of Court of LaSalle Parish, on application of plaintiff, who sought to foreclose a mortgage held by him against property of defendant. The order of executory process improperly and improvidently issued, it is contended by appellants, because the note which is secured by said mortgage was not attached to the petition, was not presented to, nor was it before the clerk when he signed said order. This contention is well founded. It it not controverted here; in fact, concurred in by appellee through written motion of his counsel in which he prays that the suit be dismissed as of nonsuit and the order appealed from be vacated and set aside.

For said reasons, the order of executory process appealed from is now annulled, reversed and set aside, and plaintiff’s suit dismissed as of nonsuit, and at his cost in both courts.

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TALIAFERRO, Judge.

Defendant and his daughter, Mrs. Mattie Breithaupt Walker, appealed sus-pensively from an order of executory proc *524 ess signed by the Clerk of Court of LaSalle Parish, on application of plaintiff, who sought to foreclose a mortgage held by him against property of defendant. The order of executory process improperly and improvidently issued, it is contended by appellants, because the note which is secured by said mortgage was not attached to the petition, was not presented to, nor was it before the clerk when he signed said order. This contention is well founded. It it not controverted here; in fact, concurred in by appellee through written motion of his counsel in which he prays that the suit be dismissed as of nonsuit and the order appealed from be vacated and set aside.

For said reasons, the order of executory process appealed from is now annulled, reversed and set aside, and plaintiff’s suit dismissed as of nonsuit, and at his cost in both courts.

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Bluebook (online)

182 So. 523, 1938 La. App. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breithaupt-v-breithaupt-lactapp-1938.