Opinion
No. 39223.
January 10, 1949.
Appeal from Civil District Court, Parish of Orleans; Luther E. Hall, Judge.
Action by the State, on the relation of Ernest A. Lucas, against William P. Hickey, recorder of mortgages for the Parish of Orleans, to erase from the records of his office the inscription of a certain mortgage. From an adverse judgment, defendant appeals. On motion of Ernest A. Lucas to dismiss the appeal.
Motion denied.
Benjamin Y. Wolf, of New Orleans, for defendant-appellant.
Delvaille H. Theard, of New Orleans, for relator-appellee.
The defendant, William P. Hickey, as Recorder of Mortgages for the Parish of Orleans, has appealed from a judgment ordering him to erase from the records of his office the inscription of a certain mortgage for the sum of $5,000. The appellee, Ernest A. Lucas, has moved to have the appeal dismissed on the ground that the recorder of mortgages cannot be aggrieved by the judgment and hence has no appealable interest in the matter.
The identical issue was presented in the case of Tharp v. Edmiston, 175 La. 1075, 145 So. 12, and in Succession of Burg, 194 La. 985, 195 So. 513. In both instances the motion to dismiss the appeal was denied. In Succession of Burg, supra, it was held that the recorder of mortgages was entitled to an appeal as a matter of right.
The case of Carrere v. Reddix et al., 211 La. 566, 30 So.2d 432, had been submitted on its merits after a motion to dismiss the appeal had been denied. See 210 La. 776, 28 So.2d 267. The court concluded, when the case was considered on its merits, that the appeal should have been dismissed because the recorder of mortgages had not been ordered to perform or to refrain from performing any act. The Tharp and Burg cases were properly distinguished on that ground.
The motion to dismiss the appeal is denied.