Succession of Burg

Supreme Court of Louisiana

Succession of Burg

195 So. 513, 194 La. 985, 1940 La. LEXIS 1036

CourtSupreme Court of Louisiana

DecidedApril 1, 1940

DocketNo. 35730.

StatusPublished

Cited by6 cases

This text of 195 So. 513 (Succession of Burg) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Succession of Burg, 195 So. 513, 194 La. 985, 1940 La. LEXIS 1036 (La. 1940).

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Opinion

FOURNET, Justice.

This case is before us on the appellee’s motion to dismiss the appeal taken by the Recorder of Mortgages for the Parish of Orleans from a judgment ordering him to cancel and erase from the records of his office a general" and special mortgage in favor of the minors Louisa Augusta, Edith Ruth, and Philip J. Burg, on the ground that appellant, having no interest in the matter, is without right to appeal from the judgment, it being mover’s contention that the natural tutor and under-tutor ad hoc appointed by the court are the only parties interested in protecting the rights of the minors.

It is revealed by the record that Mrs. Lorraine Labrathe Zay, having purchased the property upon which there was a special and general mortgage in favor of the minors, ruled their natural tutor and under-tutor, as well as the Recorder of Mortgages for the Parish of Orleans, to show cause why these encumbrances should not be cancelled and erased, and, from the judg *988 ment of the lower court ordering him to cancel same, the recorder has appealed.

Under the express provisions of the Code of Practice, the Recorder of Mortgages, having been made a party to these proceedings, is entitled to appeal from the judgment as a matter of right. Articles 564 and 565. See, also, State ex rel. Graham and Dubuclet v. Judge, 23 La.Ann. 595; Tharp v. Edmiston, 175 La. 1075, 145 So. 12. Moreover, we think that he (the Recorder of Mortgages) was not only a necessary party to the proceedings (Cappel v. Hundley, 168 La. 15, 121 So. 176), but, being bonded “ * * * for the faithful execution of the duties required of him by law, and for the payment of such damages as may be sustained by his failure to discharge such duties” (Article 3395, Revised Civil Code), has an appealable interest in this- case within the meaning and contemplation of Article 571 of the Code of Practice.

For the reasons assigned, the motion to dismiss is denied.

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FOURNET, Justice.

This case is before us on the appellee’s motion to dismiss the appeal taken by the Recorder of Mortgages for the Parish of Orleans from a judgment ordering him to cancel and erase from the records of his office a general" and special mortgage in favor of the minors Louisa Augusta, Edith Ruth, and Philip J. Burg, on the ground that appellant, having no interest in the matter, is without right to appeal from the judgment, it being mover’s contention that the natural tutor and under-tutor ad hoc appointed by the court are the only parties interested in protecting the rights of the minors.

It is revealed by the record that Mrs. Lorraine Labrathe Zay, having purchased the property upon which there was a special and general mortgage in favor of the minors, ruled their natural tutor and under-tutor, as well as the Recorder of Mortgages for the Parish of Orleans, to show cause why these encumbrances should not be cancelled and erased, and, from the judg *988 ment of the lower court ordering him to cancel same, the recorder has appealed.

Under the express provisions of the Code of Practice, the Recorder of Mortgages, having been made a party to these proceedings, is entitled to appeal from the judgment as a matter of right. Articles 564 and 565. See, also, State ex rel. Graham and Dubuclet v. Judge, 23 La.Ann. 595; Tharp v. Edmiston, 175 La. 1075, 145 So. 12. Moreover, we think that he (the Recorder of Mortgages) was not only a necessary party to the proceedings (Cappel v. Hundley, 168 La. 15, 121 So. 176), but, being bonded “ * * * for the faithful execution of the duties required of him by law, and for the payment of such damages as may be sustained by his failure to discharge such duties” (Article 3395, Revised Civil Code), has an appealable interest in this- case within the meaning and contemplation of Article 571 of the Code of Practice.

For the reasons assigned, the motion to dismiss is denied.

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Bluebook (online)

195 So. 513, 194 La. 985, 1940 La. LEXIS 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-burg-la-1940.

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