Brock v. Messina , 200 So. 511 ( 1941 )

Plaintiff in his original application for rehearing complained of our having dismissed the suit, as non-suit, contending that we should have remanded the case for further proceedings, citing the case of Cathey v. Henriques, 160 La. 652, 107 So. 493, in which the case of Richard v. Bird, 4 La. 305, 307 is cited with approval. The case of Cathey v. Henriques, supra, is not apposite to the case at bar. We have followed the case of Miller v. Cappel, 36 La.Ann. 264, as the proper procedure and decree.

In a supplemental application and brief, plaintiff cites the case of Childs v. Pruitt, 196 La. 866, 200 So. 282, 285, and contends that this case is applicable to the case at bar. The mere reading of this case will clearly show that it is not apposite to our case. The Supreme Court in its discussion of the several grounds upon which the executory proceedings had in a former suit were sought to be set aside stated: "Having reached this conclusion, it necessarily, follows that any lack of authenticity in the transfer of the note executed upon was cured by Childs' action in appearing before a notary public and two witnesses to acknowledge that the executory process might issue in favor of James T. Pruitt and that the property might be seized and sold to pay and satisfy the alleged indebtedness, which he `acknowledged to be due,'" (italics ours).

Rehearing refused.