Breithaupt v. Breithaupt

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

Opinion

TALIAFERRO, Judge.

Defendant and his daughter, Mrs. Mattie Breithaupt Walker, appealed sus-pensively from an order of executory proc 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.