Sun Finance Co., Inc. v. Jackson

• Decision Date: 23 May 1988
• Docket Number: No. 88-C-0081,88-C-0081
• Citation: Sun Finance Co., Inc. v. Jackson, 525 So.2d 532 (La. 1988)
• Parties: SUN FINANCE COMPANY, INC. v. Willie JACKSON, et al. 525 So.2d 532
• Court: Louisiana Supreme Court

Page 532

525 So.2d 532

SUN FINANCE COMPANY, INC. v. Willie JACKSON, et al.

No. 88-C-0081.

525 So.2d 532

Supreme Court of Louisiana.

May 23, 1988.

Stephen G. Sklamba, Clement F. Perschall, Jr., Sklamba & Thomas, Metairie, for applicant.

James Wattigny, Kemp & McIntyre, Hammond, for respondents.

DENNIS, Justice. ^*

Willie and Nancy Bell Jackson first executed a mortgage upon their immovable property in Tangipahoa Parish on September 9, 1981 to secure their indebtedness to Northshore Homeguard and Ironworks in the amount of $9,493.80 as evidenced by their promissory note payable to the order of bearer in the same amount. The mortgage was duly recorded in the mortgage records of that parish on November 13, 1981. Subsequently, the mortgage and the note secured thereby were assigned to Sun Finance Company, Inc.

A subsequent mortgage on the same property was executed by the Jacksons on October 8, 1982 to secure their indebtedness to Commercial Federal Savings and Loan Association in the amount of $21,350 evidenced by their note of the same date delivered to the mortgagee. This subsequent mortgage was duly recorded on October 15, 1982.

After the Jacksons fell into arrears on their payments on the mortgage note acquired by Sun Finance, Sun Finance instituted an ordinary proceeding to enforce the note and mortgage. The petition alleged that the defendants were indebted to Sun Finance in the amount of $5,977.37, plus interests, costs, attorney fees, and prayed for recognition and maintenance of the mortgage recorded November 13, 1981. A default judgment in this amount was taken and confirmed against the defendants, but the judgment failed to include any recognition of the mortgage. After Sun Finance unsuccessfully attempted to execute the judgment by garnishing the wages of Nancy Bell Jackson, it proceeded to have the mortgaged property seized and sold under a writ of fieri facias. At the Sheriff's sale, Commercial Federal Savings and Loan Association intervened, asserting that its mortgage was superior to Sun Finance's, and that it was therefore entitled to the net proceeds of the sale in preference to Sun Finance. Because of the dispute over the proceeds of the sale, the sheriff deposited them into the registry of the court. Subsequent to a hearing on this matter, the trial court dismissed the intervention and awarded the proceeds to Sun Finance. Commercial Federal appealed.

The court of appeal reversed, holding that because Sun Finance requested recognition of its mortgage in its prior suit against the Jacksons and the judgment failed to recognize it, this demand had been rejected by the trial court. Consequently, the court of appeal concluded, Sun Finance lost its conventional mortgage and was relegated to a claim under its judicial mortgage rendered and recorded in 1984, which was outranked by Commercial Federal's conventional mortgage recorded in 1982. Sun Finance Company, Inc. v. Jackson, 515 So.2d 540 (La.App. 1st Cir.1987). We reverse.

It is true as a general rule that where a judgment is silent with respect to any demand which was an issue in the case under the pleadings such silence constitutes an absolute rejection of such demand. Succession of Foster, 240 La. 269, 122 So.2d 96, 98-99 (1960); Perot's Estate v. Perot, 177 La. 640, 148 So. 903, 904 (1933); Soniat v. Whitmer, 141 La. 235, 74 So. 916, 917-18 (1916); Villars v. Faivre, 36 La.Ann. 398, 399-401 (1884); Melde Tile Roofing Co., Inc. v. Compact Homes, Inc., 92 So.2d 735, 736 (La.App.Orl.1957); Williams v. Ralph R. Miller Shows, 15 So.2d 249, 251-53 (La.App. 1st Cir.1943); Lacaze v. Hardee, 7 So.2d 719, 721-23 (La.App. 2nd Cir.1941); Rains v. Thomason & Champion, 17 La.App. 120, 135 So. 92, 94 (La.App. 2nd Cir.19...