Ricks v. Bernstein

70 La. Ann. 141

• Court: Supreme Court of Louisiana
• Decided: March 15, 1867
• Docket: No. 1306
• Status: Published

Opinion

Iusley, J.

The plaintiff in injunction stayed proceedings under the executory process, sued out against him by the defendant.

The ground urged for the injunction was, that there was a discrepancy between the note sued on and the one described in the authentic act of mortgage, upon which the order of seizure and sale was granted, in this, that the first bore interest at eight per cent, from its dale, whilst the one described only bore that rate of interest from its maturity, and that there was no idéntity between the note and the act. This is evident. But the Court below, although satisfied that the note did not correspond with the act, and upon the admission of the plaintiff, remitted one year’s interest, yet dissolved the injunction, with ten per cent, damages on the amount enjoined.

It is probable there was an error in the drawing of the note ; but in a proceeding via executivei, nothing can be left to conjecture. 1 Hen. Dig. p. 646, jl.

Every fact must be patent upon the face of the papers, and if there is any matter in pais, some other proceeding than one via executiva must be resorted to, to prove it. In the present case there is a want of identity between the note annexed to the petition and that described in the authentic act; and the Judge erred in granting the order.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the injunction sued out be perpetuated, at the costs of the appellee.