City Sav. Bank & Trust Co. v. Johnson
| Decision Date | 30 November 1973 |
| Docket Number | No. 4372,4372 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | CITY SAVINGS BANK & TRUST COMPANY, Plaintiff-Appellee-Appellant, v. Elmo JOHNSON and Wilma Jean Johnson, Defendants-Appellants. |
Alvis J. Roche, Lake Charles, for defendant-appellant.
Wilbert E. McReynolds, Burton & Nichols by James K. Nichols, Hall & Coltharp by W. E. Hall, Jr., DeRidder, for plaintiff-appellee.
Before FRUGE , DOMENGEAUX and MILLER, JJ.
Defendant Wilma Jean Johnson appeals the trial court judgment denying her status as a preferred creditor in the distribution of excess proceeds realized from a sheriff's sale of the community's mortgaged immovable property. We affirm.
Plaintiff City Savings Bank & Trust Company answered the appeal, but did not file a brief and faied to appear in person or through counsel when the case was called for argument. The answer filed by appellee is equivalent to an appeal from a portion of the judgment. LSA-C.C.P. Art. 2133. Due to its failure to appear or file a brief prior to the time the case was called for argument, this court considers the answer to the appeal abandoned and hereby dismisses the answer to the appeal. Rule VII, Section 5(b) Uniform Rules, Courts of Appeal.
Wilma Jean Johnson alleges that the trial court erred in failing to recognize her status as a judgment creditor. She claims her status is related to a previous separation judgment in which Elmo Johnson was required to pay alimony pendente lite and child support.
The trial court correctly determined that Wilma Jean Johnson was an ordinary creditor and that there were insufficient proceeds to allow her to recover a portion of the seized funds. Out finding that the trial judge correctly ranked her claim, pretermits the need to recapitulate factors not relevant to the error specified on appeal.
The record before us includes, as exhibits, two other suits. The complicated series of events, transactions, and relationships preceding and following Elmo and Wilma Jean Johnson's separation and divorce, have been carefully and exhaustively detailed by the trial judge. We are indebted to him for his enlightened analysis of the events.
Wilma Jean Johnson bases her preferred status on three documents. The first of these is a February 25, 1971 judgment (in a suit filed by her against Elmo Johnson) which made executory past due alimony pendente lite and child support in the sum of $798.75. This judgment was not recorded. The trial court properly determined that judicial mortgages take effect only from the date and time of recordation in the parish in which the judgment debtor's immovable property is located. LSA-C.C. Art. 3322; Associates Financial Services, Co. v. Hillebrandt, 250 So.2d 75 (La.App. 3 Cir. 1971); Henry v. Roque, 18 So.2d 917 (La.App. 2 Cir. 1944). Since this judgment was never recorded, Wilma Jean Johnson never achieved preferred judgment creditor status due to it.
Wilma Jean Johnson next relies upon a joint stipulation between her and Elmo, signed by a trial judge on November 22, 1972, which purportedly set past due alimony and child support at $1,951.10. Regardless of the effect and validity of such a document, it can have no effect against third parties, since...
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