On Rehearing
McCALEB, Justice.Our holding on first hearing that the order of executory process was improvidently granted was premised upon two grounds: (1) that the record did not show that the mortgage note and the act of sale and mortgage containing the confession of judgment had been presented to the trial judge when request was made for the issuance of the writ and (2) that it was apparent from the testimony that there was a discrepancy between the note sued on (which was not in the record) and the one described in the act of sale and mortgage.
In an application for a rehearing supported by affidavit, counsel for plaintiff stated that, as a matter of fact, the act of sale and mortgage and the note sued on were actually attached to the petition and presented to the district judge, even though the record did not reveal this to be the case. Upon this showing, we granted a rehearing.
When the case was resubmitted, counsel for defendant frankly conceded that the judge had all the necessary papers before him at the time he signed the order for ex-ecutory process. Consequently, the first ground upon which our judgment is pitched passes out of the case.
However, an examination of the •note sued on shows that it is payable on demand and thus confirms our resolution that there is a discrepancy between it and the note described in the sale and mortgage, which is payable at the rate of $100 per month commencing on December 1st 1949. This variance, as pointed out in our original opinion, is fatal to the issuance of the writ of executory process for, as said in Ricks v. Bernstein, 19 La.Ann. 141, “Every fact must be patent upon the face of the papers, and if there is any matter in pais some other proceeding than one via executiva must be resorted to, to prove it”. This doctrine has *2951'ong been imbedded in our jurisprudence. See the cases cited in our original opinion, particularly Hackemuller v. Figueroa, 125 La. 307, 51 So. 207 (difference between, dates of the note and mortgage) ; Kreher v. Theisman’s Estate, 125 La. 600, 602, 51 So. 656 (discrepancy of one day between date of note and date of mortgage) ; Bass v. Barthelemy, 134 La. 319, 64 So. 126 (mortgage and note were payable to different persons) and Ricks v. Bernstein, supra (note bore interest from date while mortgage bore interest from maturity).
Counsel for plaintiff attempt to differentiate these adjudications from the case at bar on the ground that the note here was paraphed “ne varietur” by the notary, while, so counsel declare, the notes in the cited cases were not thus identified with the acts of mortgage. But, even if this be so (which we doubt), we still fail to see how the presence of the paraph cures the discrepancy between the recitals of the note and the one described in the act of sale and mortgage because it is essential that evidence, other than authentic, must be introduced to establish that the latter represents the same obligation upon which suit is brought. For executory process to issue, all of the evidence must be authentic.
Counsel also maintain that, since the defendant sought an injunction on the ground that time had been granted him to pay the obligation instead of appealing from the order of executory process, he has expressly waived his right to have the writ dissolved.
We find no merit in this proposition. It was held over one hundred years ago in Chambliss v. Atchison, 1847, 2 La.Ann. 488 that grounds for enjoining an order of seizure and sale may he noticed on appeal, though not set out in the petition for the injunction, when apparent on the face of the record. It was also recognized in Hackemuller v. Figueroa, supra, that, notwithstanding that an appeal from an order of seizure and sale may be an adequate remedy, the seized debtor is also entitled to the remedy of injunction, which he may obtain on grounds other than those specified in Article 739 of the Code of Practice, provided he furnish bond (as he has in this case) and otherwise complies with the law regulating the issuance of the writ. And, while it is true that a line of cases, such as Coreil v. Vidrine, 188 La. 343, 177 So. 233, has held that an appeal provides the exclusive remedy for questioning the lack of authentic evidence to support an order of foreclosure under executory process, all of these adjudications were expressly overruled by the court in its recent decision in General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417.
For the foregoing reasons, our former decree is reinstated as the final judgment of this court.