Richardson v. Moore

43 So. 988, 119 La. 149, 1907 La. LEXIS 448

Opinion

PROVOSTY, J.

This is an application for mandamus to compel the district judge to ■grant an order directing a wife to show cause •why her judgment against her husband «hould not be canceled and erased from the records. The relator is a judgment creditor of the husband and has caused the property of the husband to be seized under his judgment, and the judgment of the wife, recorded ahead of his, operates as an apparent incumbrance on the property, standing in the way of his proceeding. The petition praying for the rule has not been produced in this court, and the relator and the respondent judge do not agree touching its contents. Relator says that the ground on which the cancellation of the inscription of the judgment is asked is that the judgment has become a mere nullity for want of timely execution. The respondent judge says the ground is that the claim on which the judgment is founded was fictitious and simulated. Relator’s petition is not sworn to. We accept the statement of the judge, and deny the application. Relator cannot institute an action in nullity of judgment on the ground of fraud by rule, and the judge properly refused to lend his countenance to such a proceeding.

Application denied, at cost of relator.