Gentis v. Blasco , 15 La. Ann. 104 ( 1860 )

Voorhies, J.

The defendant, in his answer to the hypothecary action instituted by the plaintiff, denied that the latter had given the thirty days notice to the debtor, and made amicable demand ten days previous to commencing the present proceedings

There being no evidence that both these demands were given, as required by law, the District Judge nonsuited the plaintiff.

This judgment is correct. The law requires the thirty days demand to be made as a prerequisite to the institution of the hypothecary action, whether the creditor resorts to executory process, or to proceedings via ordinaria. This is not an open question. Gravier v. Baron, 4 La. 240; Smith v. Blunt, 2 La. 135; Broussard v. Phillips, 6 N. S. 310; Williams v. Halloway, 4 La. 323 ; Robin v. Flower, 2 An. 721. In this last case the court said : “ Nothing is shown which can dispense the plaintiff from making the amicable demand required by law; and until it is made, he cannot maintain his action.” In that case, the want of amicable demand was alleged in the answer.

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