Bussieré v. Williams

On Rule xo Erase Mortoaue. The opinion of the Court was delivered by Poché, J. Plaintiff, having issued execution on a judgment which he holds against the defendant, in the sum of $350.00, proceeded by [388] rule, contradictorily with the defendant, with the latter’s daughter and with the recorder of mortgages, for the erasure of the legal mortgage inscribed on Ms debtor’s property, in favor of his said daughter, and amounting to some $4,000. He has taken this appeal from a judgment discharging his rule, on the ground that it was not the proper proceeding, and that it appeared that the defendant’s daughter had a proprietary interest in the property seized under plaintiff’s execution. The motion to dismiss presents two points: 1. That the bond of appeal is not signed by the appellant, but by the security only. The point is not well taken, and has long since been disposed of in our jurisprudence. It is now elementary that the appeal bond is sufficient, if signed by the surety alone. Murell vs. Murell, 33 Ann. 1235, and authorities therein cited. 2. It is next contended that the amount of the judgment in execution being the test of jurisdiction, this Court is clearly without jurisdiction over the matter in dispute. The effect of the judgment on the rule, if decided in favor of plaintiff, would be the cancellation or erasure of a mortgage exceeding four thousand dollars in amount. The validity vel non of that mortgage is the real matter in dispute between the plaintiff and the holder of the legal mortgage, which the former wishes to cancel, and which the latter seeks to maintain. This question is entirely covered by our decision in the case of the State ex rel. Blossvs. Judges of the Court of Appeals, 33 Ann. 1351. The motion to dismiss is therefore overruled.