Opinion
No. 27722.
March 1, 1926.
Original mandamus and prohibition by J.D. Cathey, Incorporated, to compel Hon. W. Alexander Bahns, Judge of the First City Court of New Orleans, to grant and sign a supplemental and amended petition presented to him in the matter of J.D. Cathey, Incorporated, against Frank Henriques. Peremptory writ of mandamus awarded.
McGiehan Strauch, of New Orleans, for relator.
Henry J. Rhodes, of New Orleans, for respondent.
Relator obtained executory process in the First city court of the city of New Orleans, section A, in an attempt to foreclose a chattel mortgage on an automobile.
As the mortgaged property could not be found, relator presented to said court a supplemental petition, alleging its desire to proceed via ordinaria in order to secure a personal judgment against the defendant, and prayed that the executory process issued herein be recalled and set aside, and that relator be allowed to file his amended petition.
This request was refused by respondent judge, who later on also declined to sign an order granting relator's motion to discontinue the suit.
Under this state of facts, relator has invoked the supervisory jurisdiction of this court, and prays that a writ of mandamus issue to the judge of the First city court of New Orleans, directing him to grant and sign the supplemental and amended petition presented to him in this case.
As the property subject to the chattel mortgage could not be found, the proceeding via executivia had proven of no avail.
The only remedy, under the circumstances, left to relator was to cite defendant and obtain a personal judgment. As said by this court in Richard v. Bird et al., 4 La. 307, 308:
"The law lends itself with facility to change the proceeding from the via executivia to the via ordinaria, because it promotes and expedites the administration of justice, and prevents another suit. That change may be made by the introduction of testimony under the allegations in the original petition for the executory process, and if they are not sufficiently explicit to authorize the proof, a supplemental petition may be filed."
A mortgage creditor has the right to foreclose either via ordinaria or via executivia, and may convert his executory process into an ordinary suit. Roos v. Rogers et al., 74 So. 889, 141 La. 157; Dumonchel v. Lemerick, 21 La. Ann. 31; Brooks v. Walker, 3 La. Ann. 150.
It is therefore ordered that a peremptory writ of mandamus issue to Hon. W. Alexander Bahns, judge of the First city court of the city of New Orleans, section A, commanding him to grant and sign the supplemental and amended petition presented to him by relator in the matter of J.D. Cathey, Inc., v. Frank Henriques, No. 132,579 on the docket of said court, upon relator tendering the filing fee.