Southern Hardware & Woodstock Co. v. Smith

LECHE, J. This appeal is from an order of executory process. Plaintiff alleges itself to be the holder and owner of four certain promissory notes secured by chattel mortgage upon some automobile building or repairing machinery. It prays for citation and ordinary process upon defendant and for judgment after legal delays. It further prays for executory process, which latter process was ordered by the clerk of court to issue as prayed for. It is to this order of executory process that the present appeal was taken. It does not appear whether ordinary process has issued or. not, but that is foreign to the questions involved in this appeal. Appellant complains that executory process issued without sufficient or proper authentic evidence. Plaintiff styles itself the Southern Hardware & Woodstock Co., Limited. The notes are payable to the order of the Southern Hardware and Woodstock Company, and there is no authentic evidence of the transfer of the notes from the payee to the plaintiff. The act of chattel mortgage, annexed to the petition, says the notes are dated this day, March 30, 1928, the date of the act, but the notes also annexed, are dated March 28, 1928. These variances are fatal to the order. Hackemuller vs. Figueroa, 125 La. 307 , 51 So. 207 ; Kreher vs. Theisman’s Estate, 125 La. 600 , 51 So. 656 . For these reasons it is now ordered that the order of executory process herein issued, January 18, 1929, and signed W. E. Blossman, clerk of court, be annulled and set aside at plaintiff’s costs.