Myrtle Grove Packing Company v. Mones , 226 La. 287 ( 1954 )

FOURNET, Chief Justice.

The Myrtle Grove Packing 'Company; Inc., is appealing from a judgment enjoining the sale of a certain vessel named the; “Anna Mae Williams,” seized under executory process to satisfy a claim of $2,602.32, .the balance alleged to be due on a $4,809 note ¹ given as part payment of the seized 'boat.

In this court the creditor contends the trial judge should have denied the injunction inasmuch as the debtor in his petition -for the injunction² admitted he owed a balance on the boat of at least $806.79, and the rights of both parties to impute the payments already made in accordance with law can be determined after the sale.

We are not informed on what basis the .trial judge granted the injunction, as we ■are not favored with reasons for judgment, but we think a mere perusal of the record . evidences the fact that executory process was improvidently granted in this case since .' neither the act of sale and mortgage containing the confession of judgment nor the . note sued on were presented to the trial judge at the time he was requested to issue the writ. The only document attached to the petition was a statement of an open account between the parties. The act of sale and mortgage was eventually introduced in evidence on the trial of the injunction proceedings, but the note was never introduced and forms no part of this record. It is apparent, however, from the testimony that the note sued on was a demand note, whereas the one identified in the act of sale and mortgage is as described in footnote No. 1, i. e., one payable at $100 a month.

Executory process, under which a creditor is permitted, without citation or the usual legal delays, to seize the property of the debtor in satisfaction of a claim, is a harsh remedy specifically sanctioned by the Constitution, Section 44 of Article VII, and is permitted in only two instances, the one pertinent to the instant case being where it is supported by an act impoi'ting a confession of judgment. Article 732 of the Code of Practice. Consequently, there must be strict compliance with the letter of the law governing this severe remedy. Courtney v. Andrews, 10 Rob. 180; Cumming v. Archinard, 1 La.Ann. 279; Robb v. Potts, 2 La. Ann. 552; Pele v. Meaux, 17 La.Ann. 58; Ricks v. Bernstein, 19 La.Ann. 141; Calhoun v. Mechanics’ & Traders’ Bank, 30 La.Ann. 772; Bank of Leesville v. Wingate, 123 La. 386, 48 So. 1005; and General Contract Purchase Corp. v. Doyle, La.App., 56 So.2d 432. Further, it is well settled by authorities that are legion in our jurisprudence that the writ of seizure and sale may issue only upon the presentation to the judge of the note sued on and the act containing the confession of judgment.³ Day v. Fristoe, 7 Mart., O.S., 239; Wray v. Henry, 10 Mart., O.S., 222; Tilghman v. Dias, 12 Mart., O.S., 691; Harrod v. Voorhies, Adm’x, 16 La. 254; Tildon v. Dees, 1 Rob. 407; Dodd v. Crain, 6 Rob. 58; Dosson v. Sanders, 12 Rob. 238; Cumming v. Archinard, 1 La.Ann. 279; Chambliss v. Atchison, 2 La.Ann. 488; French v. Mechanics’ & Traders’ Bank, 4 La.Ann. 152; Commercial Bank of New Orleans v. Poland, 6 La.Ann. 477; Tufts, Fermor & Co. v. Beard, 9 La.Ann. 310; Pele v. Meaux, supra; De Brueys v. Freret, 18 La.Ann. 80; Peyroux v. Lacoste, 18 La.Ann. 626; Gaudoz v. Blanque, 23 La.Ann. 520; Parkerson v. Grundy, 23 La.Ann. 530; Fazende v. Flood, 24 La.Ann. 425; Burns v. Naughton, 24 La.Ann. 476; Crescent-City Bank v. Blanque, 32 La.Ann. 264; Wood & Roane v. Wood, 32 La.Ann. 801; Miller, Lyon & Co. v. Cappel & Curry, 36 La.Ann. 264; Van Raalte v. Congregation of the Mission, 39 La.Ann. 617, 2 So. 190; Bonnecaze v. Lieux, 52 La.Ann. 285, 26 So. 832; Bank of Leesville v. Wingate, supra; Interstate Trust & Banking Co. v. Powell Bros. & Sanders Co., 126 La. 22, 52 So. 179; Osborne v. Mossier Acceptance Co., 214 La. 503, 38 So.2d 151; Commercial Credit Co. v. Melba Candy Co., 3 La.App. 267; Terrel v. Ferguson, 4 La.App. 339; General Finance Co. of La. v. Evans, La.App., 196 So. 581; and General Contract Purchase Corp. v. Doyle, supra. And where there is a discrepancy between the note sought to be collected and the note described in the mortgage, this discrepancy is fatal to the action. Chambliss v. Atchison; Courtney v. Andrews; Ricks v. Bernstein; Miller, Lyon & Co. v. Cappel & Curry; Van Raalte v. Congregation of the Mission, all supra; Taylor & Husband v. Boedicker & Badenhausen, 21 La.Ann. 170; Hackemuller v. Figueroa, 125 La. 307, 51 So. 207; Kreher v. Theisman’s Estate, 125 La. 600, 51 So. 656; Bass v. Barthelemy, 134 La. 319, 64 So. 126; and Southern Hardware & Woodstock Co. v. Smith, 11 La.App. 49, 123 So. 403.

For the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellant.

1 . According to the petition the note is payable at the rate of $100 a month and bears interest of 4%.

2 . In his petition he alleges the . mode of payment was changed verbally, the payments being extended over a 5-year period and to be taken out of such bonuses as might be due him for shrimp delivered to the company. He further alleged he had not been credited with cash payments aggregating $1,000 and the additional sum of $615.40 expended by him in making seaworthy a boat owned by the plaintiff, thus leaving a balance due of only $806.-79. He further complained the creditor was seeking to recover by executory process, as reflected by the statement annexed to the petition, certain amounts due by him on an open account, in addition to the balance due on the secured note.

3 . Executory process for the seizure and sale of an immovable must be based on an authentic act, but -where movables are involved, the act may be under private signature duly acknowledged since the enactment of Act 441 of 1952, amending LSA-B..S. 9 :5363. See, General Motors Acceptance Corporation v. Anzelmo, 222 La. 1019, 64 So.2d 417.