Opinion
No. 9957.
May 21, 1963. Rehearing Denied June 20, 1963.
APPEAL FROM FIRST JUDICIAL DISTRICT COURT, CADDO PARISH, STATE OF LOUISIANA, HONORABLE WILLIAM F. WOODS, J.
Eugene J. Coen, in pro. per.
C.J. Bolin, Jr., Shreveport, for appellee.
No appearance for Jack B. Wise, et al.
Before GLADNEY, AYRES and BOLIN, JJ.
Plaintiff obtained judgment against defendants in the sum of $1,000 together with the recognition of a labor and materialman's lien covering the following described property:
Lot Thirty-eight (38) of SCOTT ACRES SUBDIVISION, UNIT NO. 3, a subdivision of Caddo Parish, Louisiana, as per plat thereof recorded in the Conveyance Records of Caddo Parish, Louisiana, in Book 800. Page 663.
When Huhn attempted to execute his judgment, Milton C. Coen filed a third opposition seeking to enjoin the sale upon his allegation that he had a superior lien on the brick veneer house located on the property because same had been moved without his consent from other lands upon which he had a first mortgage. His attempt to execute on this house is set forth in more detail in Coen v. Gobert, et al., La.App., 154 So.2d 443 which was consolidated for trial and on appeal. To Coen's petition of third opposition plaintiff herein filed exceptions of no cause and no right of action which were referred to the merits. After the consolidated cases were tried, judgment was rendered dismissing the opposition of Coen, from which he appeals. Subsequent to the trial but prior to appeal Milton C. Coen died and Eugene J. Coen as legatee of the disputed claim has been substituted herein.
Coen's attack on Huhn's lien was based on several technical grounds but his principal complaint centered around his contention that the house upon which Huhn's labor and materials were incorporated had been moved from a lot upon which Coen had a valid first mortgage outranking any privilege which Huhn might have had as a result of his labor and materialman's lien. However, by our decision in the Coen case, cited supra, we concluded Coen's mortgage did not cover the brick veneer house. It, therefore, follows Coen has no right to assert any opposition to Huhn's execution of his judgment on the house and lot involved herein, and the judgment rejecting his demands and dismissing his opposition was correct.
As only one judgment was rendered in the lower court which affected not only the instant case but other cases consolidated therewith, we think it best to recast the judgment appealed from, and, accordingly,
It is ordered, adjudged and decreed that the judgment rendered on June 22, 1960, recognizing and ordering the execution of plaintiff's lien and privilege on the following described property be affirmed:
Lot Thirty-eight (38) of SCOTT ACRES SUBDIVISION, UNIT NO. 3, a subdivision of Caddo Parish, Louisiana, as per plat thereof recorded in the Conveyance Records of Caddo Parish, Louisiana, in Book 800, Page 663, together with all improvements located thereon.
It is further ordered that the third opposition of Eugene J. Coen be rejected and such opposition is accordingly dismissed.
It is further ordered that the costs of the lower court be divided equally between the defendants and Eugene J. Coen and that the costs of this appeal be borne entirely by Eugene J. Coen.
Affirmed and Recast.