No. 3562 Precedential Processed

Scarborough v. Duke

Louisiana Court of Appeal, First Circuit · Filed June 22, 1971 · 251 So. 2d 58

Also decided on this docket: La. Ct. App. 1st Cir., June 2, 1969 223 So. 2d 674; La. Ct. App. 1st Cir., December 31, 1929 125 So. 488; La., January 15, 1872 24 La. Ann. 30; La. Ct. App. 1st Cir., June 30, 1952 60 So. 2d 128

Cited by

Norwest Bank v. Walker 933 So. 2d 222 La. Ct. App. 4th Cir. 2006
Scarborough v. Duke 253 So. 2d 216 La. 1971
Scarborough v. Duke 251 So. 2d 55 La. Ct. App. 1st Cir. 1971

Authorities cited

Identified automatically; this list may not be exhaustive.

Scarborough v. Duke 251 So. 2d 55

Opinion text

MILLER, Judge. This writ was granted and the June 2, 1971 sheriff’s sale stayed to permit our review of the allegation that defendant relator’s mortgaged property was ordered sold under executory process without sufficient authentic evidence. The application convinced us that the judgment of executory process was based in part on insufficient authentic evidence. Most of the issues presented in this writ application are before us in Scarborough v. Duke, La.App., 251 So.2d 55 , handed down this date. The judgment of executory process was based in part on a $5,000 promissory note made payable to the Bank of Jena. There was no authentic evidence in the record to support the Bank of Jena’s endorsement, and the Bank of Jena was not a party to the foreclosure proceeding. The requirement of authentic evidence to support every link in the necessary chain of evidence in an executory proceeding is the very foundation of exec-utory procedure. LSA-C.C.P. Art. 2635. To justify the order of seizure and sale, every muniment of title and every link of evidence must be in authentic form. Miller, Lyon & Co. v. Cappel, 36 La.Ann. 264 (1884). The trial court’s judgment of April 20, 1971 denying the writ of injunction is reversed only insofar as it failed to enjoin the sheriff’s sale based on the $5,000 mortgage dated October 12, 1966, recorded in Mortgage Book 62 at page 568, Records of LaSalle Parish, Louisiana. The injunction is granted to that limited extent. Costs of this writ application are assessed to respondent. Reversed in part, and rendered.