W.B. McCartney Oil Co. v. Hataway

LEMMON, J.,

dissenting from the denial of the application.

In a supplemental petition asserting a claim against the clerk of court and his insurer, plaintiff alleges that, as a result of the clerk’s omission of its judicial mortgage, (1) the property was sold free and clear of its claims, denying it the opportunity to obtain satisfaction of its judgment, and (2) the successful bidder, but for the clerk’s omission, would have been required to bid an amount sufficient to satisfy its judgment. Plaintiff does not allege that the property which was seized and sold at the sheriff’s sale has been destroyed, removed from the state or for any other reason is not now available for seizure.

Under the factual allegations of the petition plaintiff is in the same position that it was prior to the judicial sale, that is, a holder of a judicial mortgage which is superior to all other mortgages and privileges bearing against the property. Plaintiff has alleged nothing which would prevent it from now enforcing its superior judicial mortgage against the property just as it could have done prior to the sale. Accordingly, the plaintiff has failed to allege a cause of action for damages against the clerk.

I would set aside the judgment of the court of appeal, maintain exception of no cause of action, and grant plaintiff a period of time within which to amend its petition.