
    No. 682.
    John A. Taylor v. James C. Hill.
    A. holder of mortgage paper having proceeded by executory process to enforce payment, cannot, while the suit is pending, proceed vía ordinaria against the maker of the notes. In such a case the plea of lis pendens will be maintained as to the latter suit.
    from the Eighth Judicial District Court, parish of St. Landry. Bailey, J.
    
      George B. King, for plaintiff and appellant. J. H. Overton, for defendant and appellee.
   TaeiapeRRo, J.

The plaintiff institutes this suit on two promissory notes of the defendant, each for the sum of @2188 14, with interest at eight per cent, per annum on one of the notes from the seventeenth of April, 1859, and like rate of interest on the other from the seventeenth of April, 1860.

The defense is lis pendens. The exception was sustained in the court below and the suit dismissed. The plaintiff has appealed.

There is no error in the judgment. The notes were secured by mortgage. The plaintiff first proceeded via exeentiva. Prom the order rendered in that case the defendant took a devolutive appeal, the transcript of which forms the suit numbered six hundred and twenty of the docket of this court. It seems, by reason of a prior mortgage, the plaintiff realized but little on his own mortgage, and he seeks by this action a personal judgment against his debtor. The exception was properly sustained. See N. S. 493 and 665 ; 8 N. S. 96.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs in both courts.  