Mourain v. Devall

12 La. 93

• Court: Supreme Court of Louisiana
• Decided: March 15, 1838
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court.

This is an appeal from an order of seizure and sale, after an unsuccessful attempt to obtain an injunction to arrest the proceedings.

The appellant assigns for error apparent on the-face of the record, that the note and mortgage were the property of a different individual, and disclosed a total want of right in the plaintiff.

Where the payee of a note, endorsed by him. and even another after him, in blank, is in possession of it, he may sue and recover by the ex-ecutory proceeding, when the note is identified with a mortgage. When the payee is in possession of a note, on which his name is endorsed in blank, no proof of a re-transfer is necessary to enable him to recover. A judge is not bound to receive sureties in an injunction bond, residing out of the parish, and whose solvency and sufficiency is unknown to him.-

The note presented, bears the blank endorsement of the plaintiff as original payee, and a subsequent blank endorsement of Delamar. Being now in possession of the original payee, he would be entitled to recover either with or without the'endorsements, and they might be struck out, or the last filled up on trial, if this were a proceeding in the via ordinaria.

The case, as it is presented, cannot be distinguished from that of Barbarin vs. Daniels, 7 Louisiana Reports, 481, in which we held, that when the original payee is in possession of the note on which his name is endorsed in blank, no proof of re-transfer is necessary to enable him to recover.

It is further assigned as error, that the defendants having obtained an order for an injunction, and tendered a sufficient bond, the judge should have ordered the clerk to file the petition and bond, and issue the necessary process.

We think the judge did not err in declining, upon the rule against the clerk of his court, to compel him to receive as sufficient, a bond purporting to be signed by persons not resident in the parish, and whose sufficiency and solvency were unknown to him. Code of Practice, 304.

It has been further argued, that the injunction ought to have been granted without bond with surety. To this it may be answered : 1st, that it was not asked; and 2d, that the record does not show on what grounds the injunction was claimed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.