
    No. 2610
    Second Circuit
    TERREL v. FERGUSON
    (June 2, 1926. Opinion and Decree.)
    
      (Syllabus hy the Editor)
    
    1. Louisiana Digest — Executory Process— Par. 40.
    An order for executory process signed by the judge is null if a certified copy of the mortgage was not presented to the judge and it was not alleged that the mortgage was duly recorded.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Elijah M. Terrell against R. M. Ferguson. Appealing from an order for executory process.
    Order annulled and executory process dismissed as of non-suit.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    B. R. Dawkins, of Alexandria, attorney for defendant, appellant.
   OD.OM, J.

.This is. an appeal from an order...for executory process, .signed by a judge of the-Ninth Judicial-District Court-of Louisiana in and for the - Parish of Rapides.

The order was signed • by the judge on January 14, 1926. Defendant subsequently appealed from the order, setting up as ground for the appeal that the judge did not have presented to him sufficient evidence on which to 'base' the order.

OPINION

Plaintiff alléged' that he was the holder and owner of a certain promissory note made and signed by defendant for the sum of $300.00, which said note was secured by vendor’s' mortgage on certain property which was described in the petition. He attached the note sued on .to the petition but did not attach thereto or produce a certified copy of the mortgage alleged upon and did not allege that the mortgage was recorded in the mortgage records of Rapides parish.

When this case was presented, it was conceded by counsel for plaintiff that a certified copy of the mortgage should have been presented to the judge and that it should have been alleged and shown that the mortgage was duly recorded as provided by law.

It therefore follows that the order for executory process must be set aside.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the order appealed from be annulled and set aside and that the executory proceeding be dismissed as in case of non-suit.

All . costs to be paid by plaintiff, appellee.  