
    No. 6107.
    Pierre Rousseau vs. Estate of Blaise Bourgeois.
    The only question in this caso is, whether or not, the nica oí list pendens should be maintained in an executory proceeding.
    Here the writ in the first suit having issued for too much, was returned into court, tho costs were all paid, and, instead of ordering an alias writ on a prayer for moro than tlio amount really duo, the plaintiff filed another petition and prayer for the correct sum and obtained a now order. Tho second petition was, under tho oireumstaneos, a virtual abandonment of the first, or merely supplemental' thereto, changing tho amount claimed on tho same note. It is certain that, the plaintiff could not have proceeded oil both orders at tlio samo time to sell the same property under the one single mortgage, and tlio defendant has no ground of complaint as to tho second order.
    The executory proceeding is not a suit in the ordinary signification of the term, but is merely tlio aid of tho judicial power to give force and effect to what is equivalent to a judgment confessed; and when there are actually no proceedings pending oil tho petition filed there can be soon no reason why another demand for a writ may not be filed, provided the defendant is not injured thereby, and in this ease no injury or any annoyance could result to the defendant by the filing oí the second petition for the executory process.
    APPEAL from tho Fifteenth Judioial District Court, parish of La-fourche. Beattie, J.
    
      J. 8. Goode, for plaintiff and appellee.
    
      Clay Iinobloch, for defendant and appellant.
   Howell, J.

The only question urged .before us in this case is whether or not the plea of I'm pendens should be maintained in an executory proceeding.

Tho appellant relies on the case of Taylor vs. Hill, 21 An. 639, to sustain the plea. That ease differs materially from this. The defendant in the executory proceedings took a devolutive appeal from the order of seizure and sale, and, pending the appeal, the plaintiff and appellee instituted suit via ordinaria against the defendant and appellant for an alleged balance on the claim, to which the plea of Us pendens was opposed and properly sustained, as the whole question was pending in the case on appeal. Here the writ in the first suit, having issued for too much, was returned into court, the costs were all paid, and, instead of ordering an «Has writ on a prayer for more than tjie amount really due, the plaintiff filed another petition and prayer lor the correct sum and obtained a new order. All this occurred in vacation, and the second .petition was, under the circumstances, a virtual abandonment oí the first or merely supplemental thereto, changing the amount claimed as due on the same note. It is clear that the plaintiff could not have proceeded on both orders at the same time to sell the same property under the one single mortgage, and the appellant has no ground of complaint as to the second order.

Reference is also made to several cases recognizing the right of plaintiff in executory process to issue alias writs upon the petition filed, but this is not exclusive. The executory proceeding is not a suit in the ordinary signification of the term, but is merely the aid of the judicial power to give force and effect to what is equivalent to a judgment confessed; and when there are actually no proceedings pending on the petition filed, we can see no reason why another demand for a writ may not be filed, provided the defendant is not injured thereby; and in this .case no injury or annoyance could result to the defendant by the filing of the second petition for the executory process.

Judgment affirmed.  