Madden v. Lowe

ON MOTION TO DISMISS CARVER, J. This is a devolutive appeal by defendants from an order directing issuance of a writ of seizure and sale obtained by plaintiff in foreclosing a mortgage and vendor’s privilege by executory process. Plaintiff moves to dismiss the appeal on the ground that the writ has been executed by the sale of the property against which it was directed. The appeal was perfected on the day the sale was made but a few hours before it was made. In the case of Gouaux vs. Lockport, etc., Co., 156 La. 889, 101 South. 255, the Supreme Court said: “A devolutive appeal cannot avail either the defendant or an outsider in defense of an order of seizure and sale in ex-ecutory proceedings. The reason is that the decree of the appellate court could not have the effect of annulling a sale of the mortgaged property pending the appeal. Citizens’ Bank of Columbia vs. Bellamy Lumber Co., 140 La. 497, 73 South. 308; King vs. Hardwood Manufacturing Co., 140 La. 753, 73 South. 853; Ouachita National Bank vs. Shell Beach Construction Co., 154 La. 709, 98 South. 160.” The appeal is dismissed. REYNOLDS, J., recused.