Citation Numbers: 4 La. App. 603
Judges: Mouton
Filed Date: 6/26/1926
Status: Precedential
Modified Date: 7/24/2022
Ronaldson-Puckett Company had a judicial mortgage against J. Wallace Long, from whom plaintiff bought a parcel of land with improvements. Plaintiff proceeded by rule against the clerk of - court of East Baton Rouge and Ronaldson-Puckett 'Company to have the judicial mortgage in favor of Ronaldson-Puckett Company resting on the property so purchased by plaintiff erased and cancelled from the public records. .
Prom a judgment dismissing his rule plaintiff has taken an appeal to this' court.
Defendant moves to dismiss the appeal, alleging that plaintiff has acquiesced in the judgment by voluntarily paying it; that the judicial mortgage has been cancelled, and that only a moot question is presented for decision.
Ronaldson-Puckett Company, through its president, has attached its affidavit to the motion to dismiss in which it acknowledges that its judgment bearing on the property bought by appellant has been paid, as alleged in the motion to dismiss filed by defendant an.d appellee. Attached to the motion is also the certificate of the clerk of court showing that the judicial mortgage has been cancelled under the authorization of Ronaldson-Puckett Company.
Plaintiff, appellant, through his attorney of record, has filed a counter affidavit disputing that he has acquiesced in the judgment, but does not deny that Puckett Company received payment of the judicial mortgage, authorized its cancellation, and that it was actually erased or cancelled as appears from the certificate of the clerk. In what he terms his counter affidavit counsel for plaintiff says that, acting in. compliance with a promise of sale, plaintiff sold the property on which the judicial mortgage rested to Philander Smith, who paid the mortgage with part of the purchase price, and that he gave the remainder thereof, $1082.90, to plaintiff. As the whole of the purchase price belonged to plaintiff, vendor, the part which was applied by Smith,' vendee;" to the extinguishment of the mortgage, was1 the moüéy
Such, however, is not the situation, as it appears by admissions and the documents attached to the record that the bone of contention between the parties has been eliminated by payment and which leaves only moot questions for decision.
The appeal is therefore dismissed at appellant’s cost.