M. L. McCoy & Sons v. Scott

120 So. 770, 167 La. 1041, 1929 La. LEXIS 1729

• Court: Supreme Court of Louisiana
• Decided: February 11, 1929
• Docket: No. 29155.
• Status: Published

Opinion

OVERTON, J.

Plaintiffs were the owners of promissory notes, secured by notarial act of mortgage, made by William Scott, now deceased, who was the husband of Mary Scott, whose name appears in the title of this case. Plaintiffs caused executory process to issue on the mortgage; the property mortgaged was seized and sold, and M. L. McCoy became the purchaser of it at the sale. After the sale, two of the heirs of William Scott obtained and perfected a devolutive appeal from the order for executory process. It is this appeal that is before us. ■

The appeal must be dismissed,-for nothing could be accomplished by its consideration. If the order granting the executory process were reversed, the reversal would not have .the effect of setting aside the sale made thereunder. As the order has been executed, it has become functus officio. No additional writ of any description whatever can issue from it. Ouachita Nat. Bank v. Shell Beach Const. Co., 154 La. 709, 98 So. 160; Dyer v. Mountz, 157 La. 316, 102 So. 413. If grounds exist to annul the sale, the remedy is by suit to annul.

As nothing can be accomplished by the appeal, there is no alternative but to dismiss it.

The appeal is therefore dismissed.

THOMPSON, J., takes no part.