author: SAMUEL, Judge. REDMANN, Judge,

text:
    Akinori ECHIZENYA v. Joseph ARMENIO, Mrs. Joseph Armenio, XYZ Insurance Company and Jane and John Doe, d/b/a Mediterranean Restaurant.
    No. 8478.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Many, LoCoco & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for plaintiff-appellant.
    Maurice D. Armagnac, Metairie, Frank Langridge, Gretna, for defendants-appel-lees.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff, Akinori Echizenya, filed this suit against Joseph Armenio and Mrs. Joseph Armenio for personal injuries sustained by him in a shooting incident on February 15, 1975 in front of a restaurant owned and operated by Mr. Armenio and his partner, Rudolfo Toschi. Defendants’ answer denies liability and pleads self defense on behalf of Joseph Armenio.

After a trial on the merits, judgment was rendered in favor of defendants, dismissing plaintiff’s suit at his cost. Plaintiff has appealed from that judgment. We affirm.

The undisputed facts are: At the time of the incident in suit plaintiff, an instructor in karate, was 81 years of age; defendant Armenio (now and hereafter in the body of this opinion “Armenio” refers to Mr. Arme-nio) was 71 years of age. Plaintiff and a companion, both Japanese nationals, stopped in front of defendant’s restaurant at approximately 11:30 p. m. on February 15, 1975 and either both or one of them commenced to urinate openly and publicly on the sidewalk or at the restaurant’s front entrance door. Both plaintiff and his companion were intoxicated. Upon viewing this act, Armenio went out of his restaurant and demanded the urinating cease and the two remove themselves from his property. The content of the conversation among the parties at this point is contradictory, but it is clear plaintiff and his companion refused to cease their activities and refused to remove themselves from the premises. There is some evidence Armenio became enraged, and cursed and swore at the plaintiff and his companion. Armenio then reentered his restaurant and returned with a handgun. His partner, Toschi, accompanied him.

Only three eye witnesses testified to the facts of the occurrence, the plaintiff himself, Armenio and Toschi, the latter two being defense witnesses and their testimony is conflicting and often confusing.

Plaintiff’s version of the incident was that his companion was urinating near the entrance of the restaurant when Armenio came out and told them to desist and move. He conceded they refused to leave when Armenio requested or told them to do so. An argument ensued during which Armenio cursed and abused the two men. Armenio then went back into the restaurant and, accompanied by Toschi, returned with the handgun. Armenio then told them to remove themselves from his property on penalty of being shot. Plaintiff responded, “Well, go ahead and shoot me”, at which time Armenio shot him in the leg. Plaintiff denied any physical encounter but admitted he was attempting to hit Toschi when he was shot and that he had “pushed” Toschi.

The defense version, according to the testimony of Armenio and Toschi, is basically the following: Through a glass window Ar-menio saw the two men urinating at the front door entrance to the restaurant. He went to the door, remonstrated with them and requested them to leave. They refused to do so, got into an argument and continued to urinate with one of them actually urinating on him, Armenio. He reentered the restaurant, told his wife to call the police, got his handgun and went back through the door with Toschi, who had been eating in the restaurant. When, with the handgun in evidence, Armenio again told the men to leave, they still refused to do so. Further argument ensued and Armenio and Toschi were attacked by the plaintiff and his companion. Toschi was struck in the chest and forehead. Armenio was struck first in the chest and then, by an only partially successful karate “chop”, in the neck. Plaintiff then kicked at Armenio, the kick striking the hand in which he was holding the gun. The blow accidentally caused the gun to fire and the resulting shot struck plaintiff in the leg.

The primary evidence relied on by plaintiff to establish his case is the testimony of John Thevnot, then a uniformed deputy sheriff. Thevnot’s testimony regarding statements made at the scene to him by Armenio and Toschi tend to support the position taken by plaintiff with regard to the manner in which the shooting occurred. Thevnot testified Armenio admitted he returned from the restaurant with a gun and shot plaintiff when he refused to move on. He also testified he obtained a statement from Toschi in which Toschi set forth facts consistent with plaintiff’s version of the incident.

At the trial, Armenio denied having made any statements whatever to Deputy Thev-not, and Toschi totally repudiated the content of his statement, with the exception of his name, claiming he could not read English and was unable to verify the accuracy of the statement written by Deputy Thev-not as they sat in the restaurant after the shooting.

Plaintiff’s basic argument is that the trial court committed error by not believing the testimony of Deputy Thevnot and the plaintiff as against the testimony of Armenio and his partner Toschi. However, by Deputy Thevnot’s own admission he was not a totally disinterested witness. When asked whether he was attempting “to set up a prosecution case”, he admitted he was in fact attempting to do so. In addition, the deputy testified his investigation lasted only a short time, and there is some doubt whether he could have interrogated Arme-nio and taken a written statement from Toschi in that time period. Moreover, Thevnot testified plaintiff admitted punching Toschi in the eye, but plaintiff himself contradicted that testimony. Especially in view of the contradictions and denials surrounding the testimony of Deputy Thevnot, we cannot say the trial court committed error by not accepting his testimony in its entirety.

Our settled law is that the findings of fact by a trial judge, particularly such findings as are dependent upon the credibility of witnesses, are entitled to great weight and will not be disturbed on appeal in the absence of manifest error. This rule is especially pertinent where the testimony, as in the case before us, is highly contradictory and emotional.

Here, the rule is particularly applicable because of additional testimony establishing the fact that a physical encounter did take place. Deputy Thevnot testified that when he arrived on the scene he observed what he described as a large lump over Toschi’s eye and a scratch on Armenio’s neck. In addition, Dr. Russell T. Ribando saw both Ar-menio and Toschi on February 17, 1975. They gave him a history of having been involved in a fight at their place of business on February 15, 1975. The doctor testified Armenio had bruises and contusions in the right cervical area with muscular soreness there and in the anterior chest wall. Tos-chi’s injuries consisted of a hematoma of the forehead and muscular injury of the interior of the chest wall. He administered treatment to both, seeing Toschi on one other occasion and Armenio on two subsequent occasions.

In his written “FINDINGS OF FACT AND REASONS FOR JUDGMENT” the trial court specifically found as follows:

“The wound inflicted by the defendant was not intentional but was caused by the blow of the plaintiff’s foot aimed at defendant and which struck defendant’s hand holding the weapon, and plaintiff’s demand will be dismissed.”

We find no error in that trial court conclusion.

Plaintiff also urges the trial court committed error by refusing to admit evidence of Armenio’s prior conviction of a shooting incident. In a proffer, his counsel offered the conviction for the purpose of proving Armenio’s propensity to use weapons in a violent way. On Appeal, however, plaintiff cites authority for the introduction of prior convictions to impeach the credibility of a witness.

From plaintiff’s offer of proof, it appears defendant was convicted of manslaughter more than 43 years prior to the incident in suit, and was granted a pardon approximately 8 years later. There is no evidence Armenio has been involved in any criminal activity since that time, and the record supports the fact that he was 71 years old at the time of the incident. Under all of the circumstances, even if the lower court had allowed introduction of evidence of the prior manslaughter conviction, the court would not have committed error if it had afforded no weight whatever to the evidence in arriving at its conclusion of fact.

Finally, plaintiff argues a new trial should have been granted because of newly discovered evidence consisting of the testimony of Deputy Thevnot to establish he saw Toschi reading a newspaper on the day of the trial and the testimony of a witness who stated after the trial that he heard Armenio comment it was in his power to kill plaintiff but he instead chose to point the gun down and shoot him in the leg.

At the trial, Deputy Thevnot was questioned in detail regarding Toschi’s ability to read, and testified unequivocally Tos-chi read over the statement at the time he signed it on the night of the shooting. If Deputy Thevnot had any evidence regarding Toschi’s ability to read, he could have easily offered the evidence at the time he was questioned with regard to Toschi’s reading of the statement. Moreover, the additional testimony of the other unknown witness sought to be admitted in a new trial contains little more in substance than the extensive testimony to the same effect offered by plaintiff at the trial. It is well settled the trial court has great discretion in granting a new trial, and there is no reason apparent in the record to indicate he committed error by so refusing.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissenting with written reasons.

REDMANN, Judge,

dissenting.

Except that the investigating deputy sheriff did view his investigation as a criminal one, there is no basis in the record upon which to reject his firm, independent testimony:

[Defendant] told me he came back outside, he told the two men to leave and Mr. Echizenya said, “We don’t have to get off your property.” He said, “Well, if you don’t get off my property I’m going to shoot you.” So, he said, “Well, go ahead and shoot me.” Then he told me he shot the man.

The deputy’s .testimony repeats twice that defendant gave him this explanation of how the shooting occurred.

The deputy also took a statement from defendant’s business partner and co-participant in the incident, Mr. Toschi. That statement directly contradicts that witness’s trial time testimony. The statement reads, in part:

Both men said we not getting out of here and both men started walking toward me as I stepped back the tall man [plaintiff] punched me on the forehead. I stumbled backward and Joe who was on my left then shot the tall man who was in front of me.

The deputy also testified that plaintiff gave this description of the incident “at the hospital” to which he was taken shortly after it occurred:

Mr. Echizenya told me that he began arguing with Mr. Toschi and he [Echizen-ya] got mad and punched him on the eye. After he hit him that’s when Mr. Arme-nio shot him in the leg.

There was, at the time when defendant was being investigated and arrested for shooting a man, no mention of defendant’s being urinated on, or of the gun’s firing accidentally as a result of defendant’s hand being kicked.

If the trial judge rejected the deputy’s testimony because he was making a criminal investigation, that was error as a matter of law. To hold otherwise is to reject all police testimony in all criminal cases.

Plaintiff and his companion deserve little sympathy. They behaved like drunken ruffians. The 71-year-old defendant, on the other hand, does deserve sympathy'. But the law is that one, even a 71-year-old, may not use excessive or unnecessary force, not even against ruffians. After the first encounter with plaintiff and his friend outside the restaurant, defendant returned inside his restaurant to safety and there he should have stayed. He should have summoned the sheriff’s deputies to rid him of plaintiff. His shooting of plaintiff (with a .44 magnum!) was unjustified.

Plaintiff should have judgment for his damages.

      . Also named defendants were XYZ Insurance Company and Jane and John Doe. These defendants were removed by a plaintiff nonsuit as to them. Defendant, Mr. Armenio, then dismissed his reconventional demand against the plaintiff.

      . Billiot v. Bourg, La., 338 So.2d 1148; Canter v. Koehring Company, La., 283 So.2d 716; Boatner v. McCrory Corp., La.App., 341 So.2d 1174; Thornton v. Moran, La.App., 341 So.2d 1136; Pennington v. Panepinto, La.App., 328 So.2d 812; Constance v. Smith, La.App., 326 So.2d 905; LaCour v. Colonial Life & Accident Insurance Co., La.App., 324 So.2d 458; Wiley v. Travelers Insurance Company, La.App., 300 So.2d 555.

      . See Middleton v. Consolidated Underwriters, La.App., 185 So.2d 307.

      . See City of Baton Rouge v. Downtown Investment Corp., La.App., 290 So.2d 748.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Eugene N. COOKMEYER v. Joann Karl COOKMEYER.
    No. 8264.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Gerald P. Webre, Metairie, for plaintiff-appellant.
    Walter F. Gemeinhardt, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and GAR-SAUD, JJ.
   REDMANN, Judge.

This is an appeal by an ex-husband from a judgment partially accounting for the community on his ex-wife’s “rule to distribute proceeds of sales” of a double house belonging to the community and a four-apartment building belonging to the husband. We had deemed this procedure productive of multiple litigation at best, and a distribution of assets to a debtor without offsetting his debts at worst. Disinclined to indulge the parties’ impressive litigiousness or to allow to either any cash rightfully the other’s, we had remanded for the one, complete and final partition we thought provided by the Louisiana Code of Civil Procedure (while acknowledging the parties’ right to divide funds by consent, just as they had earlier in withdrawing $1,500 each). The Louisiana Supreme Court granted writs and remanded to us.

We therefore now attempt to settle as much of the community as the record will allow.

Post-Separation Proceedings

After our December 7, 1970 dismissal of the husband’s appeal from the judgment of separation and its denial of alimony to himself (he is unemployed, disabled by a motorcycle accident during the marriage), the husband asked rehearing and we on December 29 authorized trial court proceedings to correct the date of filing the bond; 244 So.2d 78.

On January 18 the husband petitioned for the correction.

On January 29 the wife filed a rule for the return to her of items the husband had removed from their home (metal box of papers, doll, phonograph records, handyman’s encyclopedia, wig case, four bottles of liquor, and kitchen garbage can).

On February 1 the husband petitioned “for settlement of community” (without asking that a notary be appointed to conduct the partition), and an inventory was ordered.

Also on February 1 he filed a motion to fix visitation rights and for contempt.

On February 9 he withdrew his application for rehearing in the court of appeal (thus terminating the community as of filing of the separation suit, La.C.C. 155).

Also on February 9 the petition to settle community was served on the wife through counsel.

On February 12 the rule was tried, with visitation rights agreed upon and the contempt rule continued without date.

On April 6 the wife answered the petition to settle community, asserting the erstwhile pendency of the application for rehearing in the court of appeal as requiring dismissal of the “petition for partition”. The wife’s answer also alternatively prayed that “a descriptive list be substituted in lieu of an inventory”.

On May 6 the wife filed a rule to rescind the “order to take an inventory”. After one continuance that rule resulted in an order of May 21 “that the inventory be taken on May 26, 1971 at 4:00 p. m.”

On June 21 the husband filed a rule to reduce alimony.

On July 6 the wife filed a rule to increase alimony and modify visitation rights.

On July 29 the husband petitioned for divorce for two years’ separation.

On September 3 the wife answered (denying marriage in 1962, and asserting it occurred in 1963 — although at the trial, transcript pages 11 through 15, considerable time was spent questioning the husband’s testimony that his petition was indeed incorrect and that 1963, as the wife had pleaded, was the correct date: the husband’s separate property was bought in the intervening year).

On September 7 the alimony rules were both dismissed.

On September 20 the inventory was filed. It listed only physical assets and was silent on debts.

On October 19 the husband’s rule to traverse the inventory sought deletion of three items, asserting (1) that the fourplex and furnishings in three of its apartments were his separate property; (2) that no $1,700 cash existed (as of the filing for separation?); and (3) that the automobile valued at $2,500 “was sold after the separation, that mover was unable to pay the notes on the said vehicle, and that a mortgage existed upon it”.

Also on October 19 judgment of divorce was rendered and signed.

On November 29, after trial October 27, there was judgment on the rule to traverse inventory, which (1) found the fourplex community or joint venture property, reciting that the wife had given the husband $1,000 towards the “down payment” and that his father loaned $2,350 repaid by the community; (2) held the $1,700 cash and (3) the $2,500 automobile properly inventoried; and (4) also held a pistol and a 1963 automobile the husband’s separate property.

On November 12 the husband moved for a new trial as to the fourplex.

On November 14 he filed a rule to partition the community double house by sheriff’s sale.

On December 22 new trial on the rule to traverse inventory was denied.

On February 3, 1972 the notary and appraisers filed a rule to fix and pay their fees.

On February 4 the wife filed a rule for contempt and for appointment of a trustee to collect rents and pay house notes because the husband was six installments delinquent.

Also on February 4 the husband appealed from the judgment on the rule to traverse inventory.

On February 11 he filed a rule for contempt (for refusing visitation) and for reduction of alimony.

On February 23 a “consent judgment” appointed a trustee to collect the fourplex rents; ordered sold at private sale both the fourplex (for a price to be agreed upon) and the double (for $35,000); ordered the husband to pay past due house note installments; and continued indefinitely the rule for contempt.

On April 6 the wife filed a rule to make the husband sell the fourplex for $25,000.

On April 18 an “amended judgment” ordered the sale of the fourplex for $25,000 and that the proceeds from both properties be held pending further orders of the court.

On May 1 there was judgment on the rule for notary’s and appraisers’ fees (heard February 18).

(There here appears in the record a September 20 denial of writs by the Supreme Court in State v. Eugene N. Cookmeyer. The relationship of that proceeding to this is not shown.)

On October 6 the wife filed a rule to restrict visitation (because “he allowed the children to go on the ‘Flying Horses’ [merry-go-round] at City Park (a dangerous instrumentality) . . . [and] has used vulgar language in the presence” of the children).

On November 2 the husband filed a “rule for reduction of alimony, contempt and for disbursement of community funds”, reciting, among other things, that the community double had been sold on April 21, producing a net $8,942.94 deposited in the Fidelity Homestead; that the clerk of court and the rent-trustee were unpaid creditors; that these undisputedly community funds, after paying those creditors, should be disbursed to the husband and wife.

On November 14 (just as she had on April 6, 1971 opposed the husband’s “petition to settle community”), the wife opposed the rule for disbursement of community funds, filing an “exception of no cause of action and no right of action” which argued that the trial court’s jurisdiction was divested by the husband’s appeal on the rule to traverse inventory.

On December 5, the court ordered the clerk and the trustee paid a total of $386 “out of the community funds” and authorized the spouses to withdraw $1,500 each “from the community funds ... at the Security Homestead”, i. e., the disputed funds from the fourplex. On February 2, 1973, an “amended judgment” specified the $386 was also to come from “community funds ... at the Security Homestead”.

On March 13 we reversed the judgment on the rule to traverse inventory, and held the fourplex to be the separate property of the husband; 274 So.2d 739.

On April 8 the wife filed the present “rule to distribute proceeds from sales of [the community double and the husband’s separate fourplex]”. The wife’s rule claimed, in addition to half the net proceeds from the sale of the community double, credit for half of the following separate debts of the husband paid out of the double’s gross proceeds: (1) Commercial Securities, $497.75; (2) past due installments on the fourplex, $868.85; (3) husband’s attorney for loan to pay installments on four-plex, $383.40. The wife further asked payment for other debts she claimed the husband owed her: half of (4) a $235 insurance cancellation refund; (5) the $2,500 inventory value of the automobile; (6) a net $700 ($1,200 less $500 since the wife also got $500) of $1,700 cash divided when they separated; as well as the full amount of (7) the $1,000 the wife when single loaned to the husband towards the down payment of the fourplex; plus half of (8) the $2,350 repaid to the husband’s father for a loan towards the down payment of the fourplex; and (9) $10,567.69 allegedly paid during the community on the husband’s fourplex notes. The wife asked for $15,025.55 (more than the total of the items she listed).

This “rule to distribute” was set for April 24, continued at the husband’s request to May 7 and then partially tried; continued at the wife’s request from May 23 to June 19; then tried June 26, 1974.

On November 12, 1975, after allowing memoranda, the court entered the judgment the husband appealed from. That judgment simply awarded to the wife the entire $8,942.94 proceeds of the community double plus $3,118.00 of the $4,965.25 proceeds of the husband’s separate fourplex, a total of $12,060.94, leaving $1,847.25 for the husband.

On November 25 the husband moved for a new trial, provoking extensive memoran-da, including a reply memorandum by the wife which sets out the exact calculation of the judgment. Awarded to her, on the items we above numbered, were: (1) $248.87; (2) $434.42; (3) $191.70; (4) $117.50; (5) $1,250; (6) $350; (7) $1,000; (8) $1,175; and (9) $4,321.98. Those amounts plus $4,471.47 (half of the $8,942.94 net proceeds) totalled $13,560.94, from which was deducted the full $1,500 the wife had received by judgment of December 5, 1972 (from the separate property proceeds), for the final total of $12,060.94.

On June 30, 1976 new trial was denied.

On July 30 the husband petitioned for an appeal. After one 30-day extension of return day to November 1, 1976, the record was lodged in our court, which heard the matter June 3,1977, decided it June 30, and refused rehearing September 9.

The trial court’s judgment had left many assets of small value and several debts of uncertain amount unaccounted for. Thus unable for lack of evidence to finally settle the community or even to say how much of the cash on hand should go to which spouse (unless we were to hold further claim to asset or debt precluded by the rule), and believing that the Code of Civil Procedure mandated partition by a notary, with all questions to be preserved by him, C.C.P. 4608, for final settlement in one litigation, we annulled and remanded “for proceedings consistent with C.C.P. 4604 and following.” 349 So.2d 366.

On October 10 the wife applied for writs.

On November 14 the Supreme Court granted writs and remanded to us, “with instruction to decide the case on the merits of the issues presented.” 352 So.2d 232.

Appellant’s Issues

The appeal is by the husband alone. His brief’s first five issues are instances of the court’s awarding to the wife, out of the sale proceeds, half of the admitted debts of the husband’s separate estate to the community. The husband’s argument is that, instead, “the entire sum [of the husband’s separate debt in each instance] should be credited to the community and should be thus subject to the debts of the community prior to disbursement to the separate estate of the petitioner and defendant.” We reject this argument as inconsequential. Perhaps technically preferable, the husband’s procedure would produce no difference in result unless (a) he were also required to account to the community for the other half of his debts to it or (b) the remainder of the community were insufficient to pay its debts. The first circumstance is not present and the second is not proven.

The husband’s sixth issue argues that the pre-nuptial loan of $1,000 by the wife to him, if “morally binding”, “is in no way legally binding”. The premise for this conclusion is unexpressed. Perhaps it is that the loan has prescribed by three years, C.C. 3538. But C.C. 3524 provides that spouses cannot prescribe against each other. Or perhaps, as suggested at trial, the premise is that one spouse’s pre-nuptial debt to the other is not demandable in a settlement of community. We disagree; at least the loan would be paraphernal property of the wife for the restitution or reimbursement of which she has a legal mortgage on the husband’s property; C.C. 3319(3).

The seventh issue complains of a $1,250 credit to the wife for an automobile inventoried at $2,500. The husband testified that the car was mortgaged for over $2,500 and that he immediately transferred it to the mortgagee in satisfaction of the mortgage debt. The wife relies on his having disposed of the car as entitling her to half its value, yet she testified that the car was bought on credit a few months earlier, with a $3,400 balance. Her testimony thus corroborates his (although she also testified that he wrecked the car three days after they parted, causing “about eleven thousand [sic] dollars worth of damage on it”). This testimony suffices to establish that the community was indebted for mortgage debt equal in value to the value of the car. Thus the car’s net value was zero, and it was error to credit the wife for $1,250 without a corresponding debit of $1,250 for the mortgage debt. We therefore reduce the amount awarded to the wife by $1,250 on this item.

The eighth issue is a $350 credit to the wife because of the husband’s having taken $1,200 of $1,700 community cash at the time of separation, leaving the wife only $500. The husband testified that he spent this cash on community debts. The wife testified “he had $700 more than I did which he was supposed to pay the bills with.” Yet she does not testify that he did not “pay the bills”. We believe that it was error for the trial judge to reject, presumably for lack of “corroborating circumstances” within C.C. 2277, the husband’s testimony that he spent this extra $700 as both he and the wife testified it was supposed to be spent, especially when the wife did not testify that he did not pay the bills intended to be paid. His testimony was sufficiently corroborated by hers; see Samuels v. Firestone Tire & R. Co., La.1977, 342 So.2d 661. We therefore reduce the award to the wife by this $350 item.

The ninth issue relates to payment of mortgage notes on the husband’s separate property with community funds and an increase (“refinancing”) of that mortgage debt. The trial court (1) charged the husband with the interest paid as well as the reduction in principal on the mortgage loan, and (2) did not charge the community for the increase in the loan during the community. These were errors. First, the interest on the separate debt on a husband’s income-producing separate property is chargeable to the community; Sharp v. Zeller, 1902, 110 La. 61, 34 So. 129; Succession of Ratcliff, 1946, 209 La. 224, 24 So.2d 456. Second, “debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund . . C.C. 2403. (The technically correct position may be that the entire amount of the new loan is a community debt, but that the previous balance of the old loan is a separate debt to the community.) The $4,098.01 increase (from $13,501.99 to $17,600) in the loan represents a net loan during the marriage, a net debt contracted during the marriage, which is a community debt and not the separate debt of the husband. Perhaps more persuasive than the law is the fact: the wife testified that the separate property was refinanced “in order to borrow the cash to put down on the [community] property at Athania.” The wife’s claim that the husband improved his separate property with these funds, despite its contradiction of her testimony, conceivably prompted the trial judge over a year after trial to charge this community debt of $4,098.01 to the husband, but must be rejected as unproven. The wife did not prove that any funds were used to improve the husband’s separate property, much less meet the test of C.C. 2408 by showing “the value of the increase or ameliorations”, i. e., the enhancement in the separate property’s value; Succession of Singer, 1945, 208 La. 463, 23 So.2d 184. Accordingly (1) we reduce the trial court’s fixing of $8,643.97 for principal and interest payments to $2,127.96 for principal alone, due from the husband’s separate estate to the community, thereby reducing the wife’s half from $4,321.98 to $1,063.98, or a net $3,258.00 reduction of the judgment in favor of the wife. Moreover, (2) we allow the husband credit against the community for the $4,098.01 net community loan upon his separate property, thereby further reducing the wife’s judgment by $2,049.00. (Unless this “rule to distribute proceeds” itself constitutes the final community settlement, perhaps the wife can pursue, in a final community settlement, her claim for enhancement of value of the husband’s separate immovable itself under C.C. 2408.)

The tenth issue is whether the husband is entitled to credit for payments he made, after the filing of the separation suit, on the mortgage on the community’s double house. The judgment arranging alimony and child support allowed the wife to live with the two children in one half and to collect the rent of the other half of the double, and obliged the husband to pay the monthly note on that house out of rentals on the husband’s separate property (which the trial court then ruled, erroneously, was community). Thus the court ordered, in effect, the husband to provide housing by paying the note on the community-owned housing. But — especially in view of its mistaken belief that the rental-producing property was community so that the community debt would be paid with community income — the court did not decide or order that the husband should enrich the wife’s net share of the community by paying the principal of the community’s debts out of his separate income. We rule that, despite its belief the source was community funds, the order necessarily envisioned the husband’s bearing, as part of alimony and child support, the interest and any tax and insurance components of the monthly mortgage payments (since those items accomplish nothing other than payment, in part, for the use of the double), but not the principal payment. Alimony is not ordinarily intended to provide investment capital for the needy spouse; Naughton v. Naughton, La. App. 4 Cir. 1974, 304 So.2d 679. Accordingly we would allow the husband’s claim, but only for the principal of the mortgage debt on the community double paid by him. The record does not establish the exact amount of the reduction in principal. The record does establish that there were 28 monthly payments of $158 each, and that the mortgage balance at the time of the sale was $20,354.54. The record also establishes that the same number of monthly payments in the smaller amount of $113.40 each on the $17,600 fourplex mortgage reduced that smaller mortgage’s principal by $764.40 to $16,835.40. This evidence, taken together, makes it more probable than not, and thus proves, Boudreaux v. American Ins. Co., 1972, 262 La. 721, 264 So.2d 621, that the husband’s payments subsequent to filing the separation action reduced the community debt principal by at least $764.60. We therefore give him credit for half that amount by deducting $382.30 from the award to the wife.

The eleventh issue is whether the trial court went beyond the relief prayed for in the “rule to distribute proceeds” by also accounting for certain other assets and debts. Partition under C.C.P. 4601-4642 and C.C. 1347-1381 (made applicable by C.C. 1290) accounts for all assets and debts. We are unable to see any unfairness in accounting for such debts as may be proven at a rule to distribute proceeds of sale of some assets (almost all, in value) of the community.

The twelfth issue is a duplication of item (1) of the ninth issue.

The thirteenth issue relates to the sufficiency of proof of the husband’s payment of the community property mortgage after the filing of the separation. This is already treated in the tenth issue. If the husband is not satisfied, perhaps (although we express no opinion) further remedy is not precluded by this proceeding.

The fourteenth issue, omitted from the brief but argued orally by counsel for the husband, is the failure to account properly for $1,500 advanced to the wife from the proceeds of the husband’s separate property (which the trial court had ruled was community). The husband argues that non-recognition of the separate character of the source of these funds caused improper accounting for them. This argument is baseless. The amount of the judgment in the wife’s favor already includes full credit for the whole $1,500 she received. The character of the source of the money is thus irrelevant.

Appellee’s Issues

The wife’s brief argues primarily that the husband is tardy in asking for relief “after having failed to introduce testimony or evidence at the time that a Motion to Traverse was heard, and at the time that a Rule to Distribute the proceeds from the sale of properties were [sic] heard.” We find that there is evidence in the record, and we have cited it in our dispositions above.

The wife’s brief asserts “There is no evidence or any proof in the record to reveal the husband’s figure in the amount of $2,127.96, as being acceptable” (for principal alone, rather than with interest, paid on his separate property). The fact is that the building and loan payment record is in evidence. It shows that when the parties married on November 4, 1963, the balance on the mortgage loan was $13,989.40, and that the balance as of November 17,1964 on that loan prior to refinancing was $13,501.99, so that principal had been reduced $487.41 up to that point. The new loan that day in the amount of $17,600 was also reduced, by the time the petition for separation was filed, August 13,1969, to $15,959.45, for an added reduction of $1,640.55. $1,640.55 plus the earlier reduction of $487.41 totals precisely the $2,127.96 that the wife’s brief says is “reveal[ed]” by “no evidence or any proof”. The argument is without foundation.

The next argument by the wife’s brief is that an earlier opinion of ours held that the husband owed both principal and interest paid on the separate property. Our words (whether holding or not we need not decide), quoted in the wife’s brief, asserted liability “for those amounts the community paid to Fidelity Homestead on the purchase price of that property”, 274 So.2d 739, 742 (emphasis supplied). Those words do not say that payments on the loan, or on principal and interest of the loan, are reimbursable. The wife’s brief misreads them.

The wife’s brief next argues that deMonte v. McManus, La.App. 4 Cir. 1974, 294 So.2d 605, obliges us to disregard the husband’s claims because they were not pleaded either as affirmative defenses or in reconvention to the wife’s rule. We first observe that deMonte involved the mandatory petition (C.C.P. 4603) for partition, which is an “ordinary” proceeding, C.C.P. 851, with preference, C.C.P. 4605, requiring an answer. A rule to show cause, used by the wife in our case, is a summary proceeding, C.C.P. 2592(3), which obliges one only to show, and not to plead, cause: “An answer is not required, except as otherwise provided by law”, C.C.P. 2593. It is in an “answer” that affirmative defenses are required to be pleaded, C.C.P. 1005. Furthermore, the wife’s own rule asked for distribution of the entire proceeds, as had the husband’s earlier rule (and by clear intent his earlier petition to settle community). Moreover, the wife’s failure to object at trial to the evidence supporting his claims expanded the pleadings, C.C.P. 1154. Additionally, judicial economy demands that the competing claims of husband and wife be settled with as few trials as possible. Finally, due process, La.Const. art. 1 § 3, and simple justice administered without denial, art. 1 § 22, oblige us not to let one of these litigious spouses get possession of the community cash when the evidence already in the record establishes that the other spouse has a valid claim to additional credit.

Next the wife’s brief rhetoricizes, referring to the $4,098.01 net loan during the marriage secured by the husband’s separate property, “There is no clue, no cancelled checks or evidence to show traceability of the funds, to show how the husband may have used them.” The wife herself testified, as we have quoted in treating this $4,098.01 above, that the refinancing was done to borrow the down payment on the community double. In any case, C.C. 2403 declares as a matter of law, we repeat, that “debts contracted during the marriage enter into the . . . community . and must be acquitted out of the common fund . .

The wife’s brief also argues that under Arcemont v. Arcemont, La.App.1964, 162 So.2d 813, the husband cannot claim credit for payments on a house made in compliance with an alimony decree. Arcemont is not controlling (especially as to the payment of principal, which alone we have allowed) because the decree here ordered the notes paid out of rentals from property (erroneously) declared to be community in the same decree, and did not order the husband to pay them out of his own income.

Van Morkhoven v. Kleiner, La.App. 3 Cir. 1965, 180 So.2d 601, also cited in the wife’s brief, is not in point. It holds only that payments made by the husband on the mortgage on the community house occupied by the wife do not entitle the husband to deduct their amount from the wife’s alimony payments.

Decree

The judgment in favor of the ex-wife is reduced by $7,289.30, from $12,060.94 to $4,771.64, payable from the $8,942.94 community proceeds account in Fidelity Homestead together with 4,771.64/8,942.94, or 53.3565%, of the interest or dividends earned on that $8,942.94. The balance of that account and its earnings, and the entirety of the $4,965.25 separate proceeds account with Security Homestead and its earnings are decreed payable to the husband. Costs are to be equally divided.

      . The earlier panel included Morial, J., now resigned, here replaced by Garsaud, J.

      . See La.C.C.P. 4605: “[I]f the court finds that the plaintiff is entitled to a partition of the property, the court shall appoint a notary to make the partition in accordance with law.”


text:
    GULF SOUTH BANK AND TRUST COMPANY v. Francis J. DEMAREST, Recorder of Mortgages. GULF FEDERAL SAVINGS AND LOAN ASSOCIATION OF JEFFERSON PARISH v. Francis J. DEMAREST et al. SECURITY HOMESTEAD ASSOCIATION v. Francis J. DEMAREST et al. DELTA INVESTMENTS OF NEW ORLEANS, INC. v. Francis J. DEMAREST et al.
    Nos. 8587-8590.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Steven R. Plotkin, New Orleans, for Mr. and Mrs. Jack J. Weiss.
    Nicholas J. Gagliano, Mmahat, Gagliano, Duffy & Giordano, Metairie, for Gulf Federal Sav. and Loan Ass’n of Jefferson Parish.
    Edmond G. Miranne, Miranne & Miranne, New Orleans, for Security Homestead Assn.
    Francis J. Demarest, Recorder of Mortgages in pro per.
    Before REDMANN, SCHOTT and BEER, JJ.
   REDMANN, Judge.

Mr. and Mrs. Jack J. Weiss appeal from a judgment which declared fraudulent and null, and ordered erasure of, cancellations of mortgages. The mortgages affected the home the Weisses bought at a time when the fraudulent cancellations made it appear that the property was freed of those mortgages. We affirm.

Because this matter began as a mandamus proceeding, we first note that Cau-mont v. Hickey, La.App.Orl.1936, 165 So. 488, 491, held mandamus unavailable; Cau-mont reasoned that to “erase the cancellation” is not a “ministerial duty” (see La.C. C.P. 3863) because the cancellation was itself a ministerial duty under C.C. 3374. However, in our case no party excepted to the unauthorized use of summary procedure and therefore that objection to the form of procedure is waived; C.C.P. 926. Zimmer v. Fryer, 1938, 190 La. 814, 183 So. 166, shows that the substance of the relief sought is available in an ordinary proceeding (although the recorder was not there a party). See also Carrere v. Reddix, 1947, 211 La. 566, 30 So.2d 432, dismissing for lack of interest the Recorder’s appeal from a judgment “reinstating” a cancelled mortgage. We hold the objection to mandamus waived.

We also dispose preliminarily of the homeowners’ argument that “between two equally innocent parties, a burden should fall upon the party more able to bear it.” Counsel asserts that this is “well settled legal doctrine” but cites, and we find, no supporting authority. Such a doctrine might deprive appellants of their home if a forger sold it to a buyer poorer than they and thus less able to bear the loss. One bears a burden under our laws because of one’s contract (or quasi-contract) undertaking the burden, or because the law imposes the burden, as to repair damage caused by one’s fault or by persons or things under one’s control. Absent contractual or delic-tual liability, that one is wealthy does not oblige one to shoulder another’s loss.

Appellants also suggest that we hold the Recorder of Mortgages liable “for failure to take such steps as would discourage or eliminate such fraudulent cancellations as have caused this heavy burden.” This we cannot do because appellants have not sued the recorder. The approach commends itself to the Legislature because it would, by insurance, C.C. 3394, spread the risk of loss so that it not destroy the hapless homeowner. Some relief for persons in appellants’ position ought to be provided. The Digest of 1808, p. 466, art. 60, gave relief: it provided that the omission of a recorded mortgage from the recorder’s certificate left the property, “saving the responsibility of the [recorder], free from the charges omitted in the hands of the new possessor . . ”

That 1808 provision was deleted from the Civil Code of 1825. More recently, in Acts 1970 No. 609, requiring recorders to maintain liability insurance (rather than an inadequate bond), the Legislature again expressed the intent to protect innocent persons harmed by errors on the part of the recorder. The courts, too, have enforced the recorder’s liability under C.C. 3394 when discrepancies are shown between the fraudulent notes and the mortgage’s description of the original notes; Fisher v. Levy, 1934, 180 La. 195, 156 So. 220. One may assume that the Recorder’s “omitting to mention” recorded acts within C.C. 3394 means omitting to mention acts whose inscription has not been cancelled in accordance with the Code or other statutory requirements (e. g., R.S. 9:5167). Whether the present cancellations were authorized by law is not an issue in this case.

Appellants stress their freedom from fault, although they concede the mortgagees’ equal innocence. They also claim protection of “the legal doctrine that persons in good faith buying real estate or acquiring a mortgage or lien on realty can rely on public records in determining ownership or encumbrances of real property”.

This argument overstates Louisiana rec-ordation law. It omits to address the problem of the radical invalidity of forged instruments affecting land: if a good-faith mortgagee could lose his mortgage because a fraudulent release bearing a forgery of the mortgagee’s signature is recorded, then a home owner could lose his home because a fraudulent sale or mortgage bearing a forgery of the home-owner’s signature is recorded.

The Louisiana recordation law is to the contrary: recordation does not create rights at all, much less grant validity to forgeries. Succession of Rosinski, La.App. 3 Cir. 1963, 158 So.2d 467 (denying ownership to a good-faith third party who bought in “reliance” upon a recorded judgment of possession based on a forged will); Lacour v. Ford Investment Corp., La.App. 4 Cir. 1966, 183 So.2d 463 (factually similar to our case). Rights of purchasers and conventional mortgagees in immovable property are created by the act of purchase or mortgage from the owner. Proof that such rights in immovables have been so created is governed by two inflexible evidentiary rules in C.C.Tit. IV Ch. 6, “Of the Proof of Obligations and of That of Payment”: the contracts must be in writing, C.C. 2275, and, to affect third persons, they must be recorded, C.C. 2266 et al. Just as one cannot prove a contract affecting title to immovable property, so as to make it effective between the parties, with evidence that is exclusively oral, one also cannot prove such a contract, so as to make it effective against third persons, with evidence that is exclusively unrecorded. But being recorded, like being in writing, is itself not proof of anything, and particularly it is neither proof nor promise of the genuineness or validity of the recorded or written instrument which alone can be the source of the rights asserted. All that recordation does for an instrument, valid or fraudulent, is to permit its introduction into evidence for purposes of asserting its validity against third persons.

Therefore a third person can rely upon absence from the records (non-recor-dation) as guaranteeing ineffectiveness of an instrument required to be recorded. But he cannot rely upon the presence in the records (recordation) of the instrument, because the only effect of recordation is admissibility into evidence with effectiveness against third persons. In our case, the unfortunate homeowners do not rely on the absence of the mortgages from the records — the mortgages are still there though marked cancelled. The homeowners rely upon the presence of the forged releases in the records, or, as a practical matter, upon the omission of those mortgages from the recorder’s certificate. The presence of the releases in the records entitles the homeowners only to introduce the releases into evidence, as against third persons. The releases remain forgeries, still radically invalid, incapable of waiving the mortgagees’ rights or of thereby freeing the home from the mortgages: only the “parties interested”, C.C. 3371, can consent to the erasure of mortgage inscriptions; Macarty v. Landreaux, La. 1844, 8 Rob. 130; De St. Romes v. Blanc, 1868, 20 La.Ann. 424; Levy v. Desposito, 1913, 133 La. 126, 62 So. 599; Gallagher v. Conner, 1916, 138 La. 633, 70 So. 539; Fisher v. Trimble, 1926, 161 La. 343, 108 So. 666; Freeland v. Carmouche, 1933, 177 La. 395, 148 So. 658; Zimmer v. Fryer, 1938, 190 La. 814, 183 So. 166.

Affirmed.

      . Even the presumptions of genuineness after 22 or 30 years of recordation, La.R.S. 13:3727 and 3729, are rebuttable.


text:
    Ethel Lou JOHNSON, exrx. v. Addie C. WEATHERSPOON.
    No. 8675.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Leon C. Vial, III, Vial, Vial & Lemmon, Hahnville, for plaintiff-appellee.
    C. William Bradley, Jr., Reserve, for defendant-appellant.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment of eviction. She argues that she was denied the opportunity to make out her defense because of excusable tardiness in arriving for trial.

The defense was that she is entitled to remain in the premises, which were the separate property of her deceased husband (whose heir’s executrix is plaintiff), because community funds were used to make payments on a mortgage on the property. (The brief suggests her separate funds were also so used.) Alternatively, she sought recovery for half of the community funds so used.

Had defendant presented that defense, eviction should still have been ordered. She would not be entitled to remain in the premises even though her separate funds and community funds were used as alleged. Pritchett v. Pritchett, La.App., 4 Cir. 1977, 350 So.2d 1264.

Appellant’s alternative reconvention for a money judgment is an ordinary proceeding rather than summary, and it is therefore not presentable by reconvention to an eviction rule; C.C.P. 1036; Ward v. Stakelum, 1895, 47 La.Ann. 1546, 18 So. 508. See also Cepro v. Matulich, 1923, 152 La. 1072, 95 So. 226.

Appellant also argues that her husband’s heir (a daughter by a previous marriage) was never placed in possession of the house in question, and therefore her executrix has no right to demand eviction. But the heir (other than a particular legatee) is seized of right at the moment of the decedent’s death, C.C. 940, and therefore does not have to be put in possession, art. 941, and the decedent’s right of possession continues in the heir, art. 942.

Affirmed.


author: REDMANN, Judge. LEMMON, Judge,

text:
    Winston C. BABER v. Peggy Jean Sharp Chappuis BABER.
    No. 8687.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 27, 1978.
    Burton G. Klein, New Orleans, for plaintiff-appellant.
    Edward C. Alker, Metairie, for defendant-appellee.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

A father appeals from the dismissal of his rule for change of custody of his 11-year-old daughter from the mother based on the mother’s sexual immorality.

The mother also had custody of a now 18-year-old daughter (whose custody is not involved in this appeal, the father’s brief advises, because she has reached majority and has now elected to live with the father). The father’s complaint is that, between Monday and Thursday, the mother leaves the child two to four nights each week at about 10 p. m., to go to her fiance’s house; “on occasions I will fall asleep, but I am back [home] at 6 or 6:30 in the morning before they get off to school.” “Usually, sometimes when I do this, I call my mother and she goes over and stays [with the children]. My mother is always available.” And, the father complains, each Friday through Sunday night, the mother spends all her time at her fiance’s ranch at Folsom, giving further bad example to the child. Ordinarily the child is with the father on weekends, but occasionally the child spends the weekend with the mother and her fiance. Ordinarily other guests are at the ranch, and the testimony of two of these is that all visible behavior at the ranch is beyond reproach. (The mother also spends 8 a. m. to 3 p. m. every day except Wednesday at the ranch, while the child is in school. She trains horses at the ranch.)

The mother’s behavior flouts society’s preference that sexual union be limited to spouses (or at least be concealed) and, as in Spencer v. Spencer, La.App. 4 Cir. 1972, 261 So.2d 702, would justify taking child custody from her. However, the father, too, evidences human fallibility although in a different manner unwholesome for the child. Rightly disappointed in his then 17-year-old daughter’s deceit, he wrongly disciplined her by a spanking that prompted her to tell her doctor that she contemplated suicide. Evidently one of the trial judge’s concerns was the possibility of too-harsh discipline at the father’s hands.

Considering the record as a whole, we are unable to say that the judgment appealed from is not within the reasonable exercise of the trial judge’s obligation to do what is best for the child. See Monsour v. Monsour, La.1977, 347 So.2d 203; Fulco v. Fulco, 1971, 259 La. 1122, 254 So.2d 603.

Affirmed.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissents and assigns reasons.

The courts, in determining a parent’s fitness for custody when challenged on the basis of immoral behavior, have disregarded occasional sexual indiscretions attributable to human frailty. But this case involves a mother who, through constant course of deliberate and daily conduct over a period of five years, has demonstrated to the young daughters in her custody her opinion that sexual gratification should prevail over civil laws of marriage and family structure. Perhaps she is entitled to this opinion, but definitely she is not entitled to keep custody of her children and influence them as to the role of the family in civilized society.

The level of civilization in a society is no higher than the respect society holds for the family. In this case the standards that the mother set for herself and demonstrated to her children undermine respect for family status and constitute a flagrant and obvious disregard for rules of moral behavior. The ultimate consideration in every custody case is the best interest of the children, and that consideration in this case dictates removal of custody from the mother.

As to the father’s entitlement to custody, the evidence of one occasion in which the father spanked the child (whose custody is not at issue in this appeal) indicates no abusive or unreasonable treatment, and the daughter’s overreaction prompted the mother to telephone the doctor referred to in the majority opinion and have him speak to the child. Furthermore, the spanking was not such a traumatic experience as to prevent the child from deciding shortly thereafter to move in with her father.

The evidence in this record simply does not justify disqualifying the father for custody.

I would vote to take custody away from the mother and award custody to the father.

      . If this were a divorce case brought by the husband grounded on adultery, the fact of adultery was undoubtedly proved, and the trial judge stated as much in his' reasons for judgment.

      . This doctor owned the farm next to that owned by the mother’s fiance.


text:
    Lloyd JESSIE et al. v. FIRESTONE TIRE & RUBBER CO. et al.
    No. 8712.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearings Denied Feb. 14, 1978.
    Writ Refused March 27, 1978.
    Gordon Hackman, Boutte, for Lloyd Jessie.
    Paul V. Cassisa, William H. Syll, Jr., Bernard, Micholet & Cassisa, Metairie, for General Motors Corp.

      Arthur C. Reuter, Jr., Reuter & Reuter, New Orleans, for Interstate Fire & Casualty Co.
    H. F. Foster, III, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for Gulf Insurance Co.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

On exception of lis pendens, the trial court in St. Charles parish in this action “ordered, adjudged and decreed” that plaintiffs should dismiss a similar action pending in Orleans parish. Over two months later, one defendant moved and obtained dismissal of this action because of plaintiffs’ failure to dismiss the Orleans action. Four months later plaintiffs filed a petition to annul on the grounds that “no notice was given of the date . . . the rule for dismissal was to be heard.” Plaintiffs alleged they had mailed a motion to dismiss in Orleans which was apparently not (received? or) acted upon.

The trial court’s dismissal of the action of nullity, here appealed, was correct because the ground alleged is not within La.C.C.P. 2002 or 2004. However, we conclude that this appeal also brings before us the judgment dismissing the original action.

Plaintiffs aver in brief that they received “no notice from the court of said judgment.” Accepting this averment in the absence of any certificate of notice by the clerk (C.C.P. 1913 requires more than an undated and unsigned notation “copies sent to all counsel”), we note that when plaintiffs learned that their action had been dismissed, they still had time to appeal because of the lack of notice, C.C.P. 1913, necessary to start the running of the periods for new trial, C.C.P. 1974, and appeal, C.C.P. 2087. Plaintiffs’ petition for nullity was the equivalent of an application for new trial, and, when the trial judge finally dismissed that petition, that dismissal was the equivalent of a refusal of a new trial, from which the ordinary appeal time began to run.

We therefore treat plaintiffs’ appeal from the judgment dismissing the action of nullity as also constituting a timely appeal from the original judgment dismissing the original action. We amend that judgment to provide for a delay within which plaintiffs must dismiss the Orleans action or suffer dismissal of this action.

The judgment appealed from dismissed on ex parte motion of one defendant because of plaintiffs’ failure to dismiss the Orleans action. The form of the earlier judgment ordering dismissal of the Orleans judgment was:

It Is Ordered, Adjudged and Decreed that:
1. Plaintiff shall dismiss action No. 528-243 on the docket of the Civil District Court for the Parish of Orleans.
2. Plaintiff shall file the necessary orders to show procedural capacity [for minor plaintiffs] within 10 days or have this action dismissed.

That earlier judgment, by its physical placement of the delay period in paragraph 2 alone, thus fixed a ten-day delay within which to remove the dilatory exception’s objection to procedural capacity, but it did not fix a delay within which to remove the declinatory exception’s objection to the pendency of the Orleans action. C.C.P. 932 provides that the judgment sustaining the declinatory exception shall order plaintiff to remove removable grounds of the exception “within the delay allowed by the court.” Because it must be said that the earlier judgment did not fix the delay for dismissing the Orleans action, despite the clear oral instruction by the trial judge at trial of the exception, we conclude that the appropriate judgment on the motion to dismiss for noncompliance was a judgment fixing the delay. Thereafter, in case of noncompliance within that delay, dismissal would be appropriate.

The judgment of dismissal of the action of nullity is therefore affirmed, and the judgment dismissing the original action is therefore amended to order dismissal of this action upon plaintiffs’ failure, within a delay to be fixed by the trial court, to dismiss the Orleans action. All costs of this appeal are to be borne by plaintiffs.


text:
    FIRST PROGRESSIVE BANK v. Warren GRIFFITH et al.
    No. 8719.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Warren M. Simon, Jr., Metairie, for plaintiff-appellee.
    Bruce G. Reed, Metairie, for defendants-appellants.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

The maker and indorser of a promissory note appeal from a summary judgment for its amount in favor of plaintiff payee. They argue that the failure of plaintiff’s supporting affidavit to attach “sworn or certified” copies, La.C.C.P. 967, of the note and the previous note of which it was a renewal, both referred to in the affidavit, prevents summary judgment. We disagree.

“When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” La.R.S. 10:3-307(2). Had the petition separately alleged and the answers admitted the signatures of defendants, no affidavit would have been necessary, C.C.P. 966, because no defense was asserted. The affidavit was necessary only to show that there was no dispute that defendants’ signatures were genuine. Any other allegations were superfluous.

We reason that C.C.P. 967’s requirement of copies of all “papers” referred to in an affidavit “means that if written documents are relied upon they actually must be exhibited;” Wright and Miller, Federal Practice and Procedure, § 2722, 484-485. The affidavit here does not rely upon any paper to prove defendants’ signatures: the affiant avers that he saw defendants sign “the note herein sued upon” which was already in the court record.

Defendants did not by counteraffidavit deny or even question the genuineness of their signatures, and in this court they do not contend they were prejudiced by the failure to attach a sworn or certified copy of the note to the affidavit. They simply argue technical noncompliance with the statute.

Plaintiff’s answer to this appeal seeks exercise of our discretion under C.C.P. 2164 to grant damages for frivolous appeal. Damages are refused as inappropriate because there was a genuine issue as to whether summary judgment was properly granted.

Affirmed.

      . Only a sworn photo copy of the note would have been of value to defendants in denying their signatures. C.C.P. 967 only requires a sworn copy, which presumably can be a non-photographic copy.


author: LEMMON, Judge.

text:
    Lawlest J. LeBLANC v. Audrey Weibelt, wife of Lawlest J. LeBLANC.
    No. 8689.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Granted March 31, 1978.
    Aubrey E. Pate, Kenner, for plaintiff-appellant.
    Tucker, Schonekas & Garrison, Arthur S. Mann, III, New Orleans, for defendant-ap-pellee.
    Before REDMANN, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

Lawlest LeBlanc has appealed from that part of a judgment of divorce which awarded his wife alimony. The decision on appeal turns on the wife’s proof of her freedom from fault.

Mr. LeBlanc stated his reason for leaving the matrimonial domicile was that his wife refused to have sexual relations for over two years, told him she didn’t love him, and urged him to leave.

Mrs. LeBlanc, who described their marriage as “happy” until her extraordinarily silent husband suddenly left home, denied she told her husband she didn’t love him or encouraged him to leave, but she neither denied his testimony about her refusal of sex nor attempted to explain the refusal.

Mutual fulfillment of reasonable sex desires is a marital obligation. Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4th Cir. 1973), cert. den. La., 288 So.2d 643. Voluntary and persistent refusal of normal sexual relations, without any attempt to explain or justify the refusal (such as prior outrageous behavior by the denied spouse) constitutes cruel treatment and outrage of such a nature as to render living together insupportable. C.C. art. 138(3).

In this case Mrs. LeBlanc’s failure to deny her husband’s statements about refusal of sex leaves that testimony uncontra-dicted. She has thus failed to prove her entitlement to alimony under C.C. art. 160.

For these reasons, the judgment of the trial court is reversed in part, and it is now ordered that the wife’s demand for alimony be dismissed. Each party is to bear his own costs.

REVERSED IN PART AND RENDERED.


text:
    Ronald Joseph SAVOIE v. Anita M. Ordoyne Savoie, wife of Gene CURTIS.
    No. 8838.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Carol B. Hart, New Orleans, for plaintiff-appellant.
    Perez, Fernandez, Seemann, Egan, David Gorbaty, Chalmette, for defendant-appellee.
    Before REDMANN, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

This litigation began as a motion by the father for a change of child custody based on various grounds associated with the mother’s present husband’s relocation to Saudi Arabia for two years to accept an economically beneficial job opportunity. The father’s appeal is limited by stipulation to his alternative demands for termination of support payments and for visitation for two months during the summer at the mother’s expense. He questions the judgment insofar as he is ordered (1) to continue child support for two children, ages 6 and 8, at the rate of $170.00 per month (except when the children are with him), and (2) to pay one-half of the cost of round trip transportation for the children’s two-month visitation with him in the summer of 1978.

The combined gross annual income of the father and his present wife (who has no children) was $21,200.00, while the mother’s present husband’s gross annual income in Saudi Arabia was to be $27,220.00, plus free housing, utilities, automobile and gasoline.

The father first argues that he should not be required to continue support at the same rate because the children are the beneficiaries of their stepfather’s increased salary and fringe benefits.

Both parents have the obligation of supporting, maintaining and educating their children. C.C. art. 227. Child support is to be fixed according to the needs of the children and the circumstances of the parents obliged to pay the support. Marcus v. Burnett, 282 So.2d 122 (La.1973). The trial judge is vested with wide discretion in fixing an award of child support. We find no abuse of discretion in the judgment ordering the father to pay $170.00 per month for the support of two children under the circumstances of this case. The father’s suggestion that a trust fund be established with his support payments for use in time of greater need shows commendable concern for his children, but no abuse of discretion can be attributed to rejection of this suggestion.

The father further argues that the order requiring him to pay half of the $2,000.00 to $2,400.00 cost of transportation necessary to accomplish the summer visitation is in effect an increase of his original support obligation.

An increase in visitation costs always accompanies the custodial parent’s relocation to a more distant city. The inherent issue is the equitable assessment of the increased costs.

Here, the children’s move was for the economic betterment of the mother’s present family, and the trial court in effect allowed her to remove the children temporarily from this jurisdiction on the condition that she pay for the return trip to Saudi Arabia after the summer visitation. At the same time the trial judge in effect placed the cost of the trip to Louisiana on the father who requested the right of summer visitation and should reasonably bear some of the expenses involved in the exercise of his right. We find no abuse of discretion in the handling of this temporary-situation.

The judgment is affirmed.

AFFIRMED.

      . The judgment ordered reestablishment of the original visitation privileges in June, 1979.


author: GULOTTA, Judge. DUPLANTIER, Judge,

text:
    Karen Anne Krupp, wife of James R. SUTTERFIELD v. James R. SUTTERFIELD.
    No. 8574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused April 7, 1978.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiff-appellant.
    Sutterfield & Vickery, James R. Sutter-field, New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   GULOTTA, Judge.

The sole issue confronting us is whether a divorced wife, who has been granted custody of minor children, is entitled to receive from her divorced husband attorney’s fees incurred in connection with the successful dismissal of the husband’s rule for a change of custody.

In dismissing the rule for attorney’s fees, the trial judge said:

“There is no basis in law which this Court can find, which would allow it to assess attorney’s fees, by the wife on her behalf against the husband.”

The wife appeals. We affirm.

The general rule relating to assessment of attorney’s fees is that these fees are not recoverable unless provided for by statute or by contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1958); Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976).

We have not been cited nor have we found any cases in our jurisprudence where a wife’s attorney’s fees for representation in a custody rule were sought and either granted or denied. Furthermore, no statute exists authorizing the payment of attorney’s fees under the circumstances of our case. An interesting line of cases from the Louisiana Supreme Court and from our Courts of Appeal, however, involves a wife’s demand against her husband for her attorney’s fees incurred in connection with a rule against the husband for delinquent alimony and child support.

In Newson v. Newson, 176 La. 699, 146 So. 473 (1933), a case involving child support, the Louisiana Supreme Court awarded attorney’s fees to the wife incurred in connection with the rule to obtain child support. Thereafter, however, in Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950), the court denied the wife’s demand for attorney’s fees in a case involving past due alimony. The Wainwright court, without mentioning the earlier Newson decision, stated:

“With regard to the demand and award for attorney’s fees we know of no law and have been referred to none which provides for such fees in a case of this kind. * * *”

The Wainwright decision appears to be the last expression (except in subsequent cases where writ applications were denied) of the Louisiana Supreme Court in these cases.

Citing Wainwright, this court in Stoltz v. Stoltz, 162 So.2d 103 (La.App.4th Cir. 1964), writ refused, 246 La. 349, 164 So.2d 352 (1964), denied to the wife attorney’s fees incurred in connection with her rule for delinquent alimony and child support. In denying the writ, the Supreme Court said, “Writ refused. No error of law in the judgment.”

The Third Circuit, in the first of a line of three cases, in Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App.3d Cir. 1975), awarded attorney’s fees incurred by the wife in prosecuting her action for past due child support. The Gauthreaux court followed the earlier Supreme Court decision in New-son v. Newson, supra, and concluded that attorney’s fees in these cases is an exception to the general rule involving the assessment of attorney’s fees. Although acknowledging the existence of the Wainwright and Stoltz cases, the court in Gau-threaux stated preference for the Newson decision. No writs were applied for in the Gauthreaux decision.

Thereafter, the Third Circuit in a majority decision in Janise v. Janise, 328 So.2d 711 (La.App.3d Cir. 1976), writ refused, 333 So.2d 233 (La.1976), in a past-due child support rule, declined to award attorney’s fees to the wife and declined also to follow the decision of a different panel of the Third Circuit in the Gauthreaux case. The Janise court followed the rule as represented by Wainwright and Stoltz. In denying the writ, the Louisiana Supreme Court stated, “Under the facts found, the result is correct.”

Interestingly, still another panel of the Third Circuit, when confronted with the same question involving attorney’s fees in Baldwin v. Baldwin, 337 So.2d 245 (La.App.3d Cir. 1976), chose to follow the earlier Gauthreaux decision of the Third Circuit. Attorney’s fees were awarded in the Baldwin case. No writs were applied for in that case.

Recently, in Stanfield v. Stanfield, 342 So.2d 1195 (La.App.2d Cir. 1977), the court declined to award to a wife attorney’s fees incurred in connection with her rule to obtain past due alimony and child support. The Stanfield court followed the Supreme Court Wainwright decision. No writs were applied for in that case.

Though the foregoing cases involved alimony and child support and not custody, we are inclined toward the view that attorney’s fees are not recoverable by the wife from the husband in custody cases.

The Legislature, by Act 462 of 1977 (LSA-R.S. 9:305), provided for the assessment of attorney’s fees in connection with executory judgments for delinquent alimony and child support payments. We find it significant that no attorney’s fees were statutorily provided for in custody cases. This legislative omission is supportive of our conclusion that attorney’s fees are not recoverable in our case.

We are not persuaded by the wife’s argument that she, in defending against the rule brought by the husband for transfer of the custody of the children, was acting for the benefit and welfare of the children and, under these circumstances, the husband should bear the expense incurred on the children’s behalf. The rule for custody in which the husband sought to deprive the wife of the custody of the minor children was directed against her. It is the wife’s suitability for custody which is in issue. The effort of the wife’s attorney is directed toward a showing of this suitability. It is unrealistic to believe that the services of the attorney were rendered toward the children in the custody hearing and not to the wife.

For the same reasons, we reject also the wife’s contention that attorney’s fees, like the extraordinary expense of medical fees incurred on behalf of the children, should be paid by the husband.

We conclude, therefore, that the mother of minor children, made defendant in a rule for transfer of custody of those children, is not entitled to an award for attorney’s fees to be assessed against the father of the children. Accordingly, the judgment is affirmed.

AFFIRMED.

DUPLANTIER, J., dissents.

DUPLANTIER, Judge,

dissenting.

I respectfully dissent. ■ I would reverse and remand for trial on the merits.

Plaintiff, the mother of minor children the custody of whom had been awarded to her, brought a rule against her former husband, the father of the children, seeking reimbursement of attorney fees incurred by her in her successful defense of a prior proceeding by the father, seeking to obtain custody of the children.

The trial judge, having previously dismissed the husband’s suit to change custody after lengthy and protracted hearings, thereafter dismissed the mother’s rule for reimbursement of her attorney expense. While the record is not entirely clear on this point, it is apparent that the district court, in dismissing plaintiff’s claim, maintained defendant’s exception of no cause of action. No testimony seems to have been taken on the date set for hearing.

In my opinion, limited to the particular circumstances in this case, a claim by the mother of a minor child, to whom legal custody had been awarded, against the father for reimbursement of legal expenses incurred by her in her successful defense of a proceeding brought against her to deprive her of the legal custody of the child states a cause of action.

The trial court correctly pointed out in its reasons for judgment that it could find no basis in a statute or reported decision for holding as I would. However, this is not the usual claim for attorney fees prohibited in Louisiana absent a statute or contract between the parties providing therefor. Such attorney fee claims are incidental to a primary claim between the parties for enforcement of a debt or a contract between them. Indeed, in the instant case it is merely coincidental that the father was plaintiff in the suit to take custody away from the mother. I would reach the same conclusion if the mother sought reimbursement from the father for legal expenses incurred in maintaining her custody, regardless of who provoked the proceedings to change custody, for the legal expenses were incurred by the mother at least partly for the benefit of the minor children, in the discharge of her duty as their legal custodian to make certain that the welfare and best interest of the children, the paramount issue in the custody proceeding, were properly protected.

In Wingo v. Cook, the Third Circuit held that the mother may claim reimbursement from the father for unusual medical expenses reasonably incurred by her in treatment of a child’s illness, on the ground that a prior award for child support did not and could not contemplate such unusual expenses and that the child was, of course, entitled to the reasonable medical treatment. I would apply the same reasoning to legal expenses. It is true that the children are not named defendants in a custody proceeding and that perhaps, in determining the amount which the father should be compelled to contribute, consideration should be given to the fact that the attorney’s services in her attempt to retain custody may have benefitted the mother as well as the children. Nevertheless, the paramount issue in the custody proceeding is not the mother’s best interest, nor the father’s, but the children’s. Just as the mother would have a duty to secure reasonable medical treatment for her children, even though a prior decree fixing the amount which the father must pay for child support does not take such expenses into consideration, she is equally duty-bound to secure adequate legal representation to make certain that the children’s emotional well-being involved in a custody decision is properly presented to and considered by the court. The father should be compelled to contribute to the reasonable expense, medical or legal, in either instance, for that expense was not taken into consideration in the prior support decree.

The court, in Wingo, considered the reasonableness of the medical expenses and found the mother’s decision to incur them reasonable. The same issue of reasonableness is present when a mother employs counsel in a proceeding in which she seeks to retain legal custody of her children. However, the trial court obviously decided that the mother’s decision to attempt to retain custody of her children was reasonable, for the trial court decided that it was to the best interest of the children that they remain with the mother.

If minor children were sued by a stranger for damages, and their legal custodian retained counsel for them to defend the suit, the extraordinary expense involved, not covered by a previous child support decree, should certainly be apportioned between the parents, and the mother-custodian’s rule against the father for reimbursement of legal expenses incurred on the children’s behalf would certainly state a cause of action. The fact that the mother is the named defendant in a proceeding to change her legal custody of the children should not deprive her of the right to seek at least partial reimbursement for legal expenses, although, as previously noted, it may affect the amount of such reimbursement.

I would not at this stage decide the extent of the mother’s claim against the father for reimbursement of attorney’s fees, nor the proportion of such fees which the father should pay, but only that the mother’s claim for reimbursement states a cause of action. Of course, to decide as I suggest may cause courts to have to consider many claims difficult of resolution, in many other situations which could occur in custody proceedings and the legal expenses related thereto. This should be of no consequence in the resolution of the particular claim asserted in this case.

      . In his concurrence in the writ denial in Janise, Justice Dixon stated that he is of the opinion Newson v. Newson, 176 La. 699, 146 So. 473 (1933) may be correct, and in the proper case, the question of attorney’s fees for recovering past due alimony should be reconsidered by the Supreme Court.

      . Act 462 of 1977, in pertinent part, provides:
      “Section 1. Section 305 of Title 9 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:
      § 305. Attorney fees in alimony and child support proceedings
      When the court renders an executory judgment incorporating the payment of child support or alimony in arrears, the court may award reasonable attorney fees in favor of the prevailing party.”

      . In this connection, the wife, in analogizing attorney’s fees to medical expenses, relies on the case of Wingo v. Cook, 306 So.2d 370 (La.App.3d Cir. 1975) where one half of extraordinary medical expenses incurred on behalf of the child were ordered paid by the father in addition to monthly support payments.

      . La.App., 306 So.2d 370.

      . Nethken v. Nethken, La., 307 So.2d 563; Estes v. Estes, 261 La. 20, 258 So.2d 857; Fulco v. Fulco, 259 La. 1122, 254 So.2d 603; Bourque v. Leger, La.App., 322 So.2d 784; DeCelle v. DeCelle, La.App., 313 So.2d 634; Phelps v. Phelps, La.App., 258 So.2d 112.


author: GULOTTA, Judge. BEER, Judge,

text:
    SALSUL COMPANY v. KOHLMEYER & CO., in Liquidation.
    No. 8672.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Granted March 27, 1978.

      Flanders & Flanders, Dudley D. Flanders, New Orleans, Breazeale, Sachse & Wilson, Victor A. Sachse, Jr., Frank P. Simoneaux, Baton Rouge, Albert J. Flettrich, New Orleans, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, James P. Farwell, E. Harold Saer, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, BEER and BOWES, JJ.
   GULOTTA, Judge.

We are confronted with a motion to dismiss this appeal, which we deny, and the appeal on its merits, which we affirm.

In this action, plaintiff, as assignee of Raymond F. Salmen, a partner in commen-dam with general partners of Kohlmeyer & Co., seeks the following relief: 1) a money judgment against Kohlmeyer & Co. in liquidation resulting from the alleged improper voluntary liquidation of assets; 2) an accounting from the liquidators; and 3) the appointment of a judicial liquidator or receiver of Kohlmeyer & Co. to complete the liquidation.

The trial judge maintained an exception of no right of action. Although no reasons were assigned by him for maintaining the exception, implicit in his decision is the determination that the proper party plaintiff is not Salsul but is Raymond F. Salmen, the partner in commendam with the general partners of Kohlmeyer & Co. Thereafter, in a motion for new trial, plaintiff sought the right to amend the petition by making Raymond F. Salmen a party plaintiff. This motion was denied and, in written reasons assigned by the trial judge, he stated:

“The Court feels that the petition cannot be cured- by amendment. The proper plaintiff must proceed by petition.”

Plaintiff appeals. We affirm.

MOTION TO DISMISS

At the outset, we are confronted with SalsuPs motion to dismiss its own appeal on the ground of mootness in view of certain events which have occurred subsequent to the lodging of the appeal.

Following plaintiff’s filing the instant suit, Paul Karp, a limited partner of Kohl-meyer, intervened and asserted claims similar to those urged by plaintiff. A motion to dismiss the Karp intervention was denied by the trial court. Subsequent to the court’s maintaining the exception of no right of action as to Salsul, the Succession of Raymond F. Salmen also intervened, seeking relief prayed for by Salsul. Kohl-meyer answered Karp’s petition of intervention and requested a judicial liquidation and an accounting, and the trial judge rendered judgment ordering an accounting and a liquidation.

Subsequently, on November 14, 1977, the trial court supplemented its judgment for the liquidation and the accounting by ordering the judicial liquidators to file suit on or before September 30, 1978, “to determine the rights, status and legal relationship, if any, between Kohlmeyer & Co. and its general partners on the one hand and the Succession of Raymond F. Salmen, Salsul Company and Paul Karp on the other hand”. On the basis of this judgment, Sal-sul maintains that the appeal before us is now moot. We disagree.

A case is moot when the rendition of a judgment can have no practical or useful effect on the existing dispute between the parties and no practical relief can be determined from it. Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960); Cook v. Cook, 320 So.2d 612 (La.App. 4th Cir. 1975), writ denied, 323 So.2d 477 (La.1975).

Salsul’s petition asks for the appointment of a judicial liquidator and for an accounting, but it also asks “to have its claim against the defendant recognized”. Though we agree that plaintiff’s claims for a judicial liquidation and an accounting are now moot, the question of the recognition of Salsul’s rights in the Kohlmeyer partnership and in the liquidation is still open. Though it is true that these rights, if any exist, would presumably be decided in the suit to be filed by the liquidators on or before September 30, 1978, we conclude that Salsul’s right of action, if any exists, should be determined in this appeal. The future suit to ascertain the rights of the parties will raise the same question which is now before us. Judicial economy, therefore, requires consideration of the issue now on appeal. Moreover, if we dismiss the appeal on the ground of mootness, the trial court’s judgment maintaining the exception of no right of action as to Salsul will become final and, perhaps (although we do not pass on this question), res judicata might apply as to rights between Salsul and the defendants in the future proceedings to be filed by the liquidators. It is apparent that more confusion will result if we dismiss this appeal. Accordingly, the motion to dismiss the appeal is denied.

NO RIGHT OF ACTION

Plaintiff’s contentions, on appeal, are: 1) that the effect of maintaining the exception of no right of action is an erroneous determination by the trial judge that plaintiff, in its petition, asserts rights as a partner in commendam of Kohlmeyer & Co. and not as a creditor of defendant. It is plaintiff’s position that as a creditor of Kohlmeyer & Co. it is entitled to seek the appointment of a judicial liquidator or receiver, to obtain an accounting and to recover a money judgment resulting from the improper voluntary liquidation of the company’s assets; 2) that the trial judge erroneously failed to recognize the valid assignment of Raymond F. Salmen’s rights arising out of the partnership agreements to plaintiff; and 3) that the trial judge, once having maintained the exception of no right of action, erroneously denied plaintiff’s request to include Raymond F. Salmen as a party plaintiff. In this connection, Salsul relies on LSA-C.C.P. art. 934.

At the outset, we reject plaintiff’s contention that the trial judge erred in failing to recognize that plaintiff’s rights are asserted as a creditor of Kohlmeyer' & Co. in liquidation and not as a partner in commendam. This issue was laid to rest by this court in the earlier litigation, Salsul Company v. Kohlmeyer, 325 So.2d 858 (La. App. 4th Cir. 1976), writ denied, 330 So.2d 281 (La.1976), in which we stated:

“. . .we are led to the conclusion that Salmen is a partner in commendam of the partnership and not a creditor. sic * *

Plaintiff seeks to reassert, in this appeal, the same issue between the same parties which was decided by this court in its earlier decision. Upon the denial of the writ application by the Supreme Court this judgment became final.

We find no merit, further, in plaintiff’s contention that Salsul is the proper party plaintiff, having acquired Salmen’s rights by assignment. As pointed out by defendant, Salsul does not allege that it is a partner of Kohlmeyer. Plaintiff does allege, however, that Salmen is the managing partner of Salsul and as such Salsul, through its managing partner, Salmen, has the right to assert Salsul’s claim against defendant. Admittedly, Salmen entered into a partnership with Kohlmeyer & Co. For the purposes of the exception, we assume that Sal-men assigned whatever rights he has or may have, growing out of the partnership agreement, to a third party, i. e., Salsul.

Agreements of a partner with a third person are covered in LSA-C.C. art. 2871. This article reads:

Art. 2871. Right of one partner to make a partnership of his share with a third person
“Art. 2871. Every partner may, without the consent of his partners, enter into a partnership with a third person, for the share which he has in the partnership, but he can not, without the consent of his partners, make him a partner in the original partnership, should he even have the administration of it.
“He is responsible for the damages occasioned by this third person to the partnership, in the same manner as he answers for those he has occasioned himself, according to article 2862.”

From a reading of the LSA-C.C. provision and its French ancestor, as discussed by Planiol, it is clear that although a partner may, without the consent of the other partners, enter into a contract with a third party involving the partner’s interest in the partnership, nevertheless, this subpartnership cannot confer partner status upon the third party. Unless he is a partner such a third party has no right to assert a claim against the remaining partners or the partnership. Only the partner has this right. A third party who has acquired rights through his contractual relationship with one of the partners can only assert those rights against the partner with whom he has contracted.

Accordingly, we conclude that the trial judge properly maintained the exception of no right of action. The assignment or transfer of the partner in commendam’s (Salmen’s) rights to the third party, Salsul, does not confer upon the third party the right to assert any claim against the partnership if the remaining partners have not consented to the transfer of Salmen’s rights or the assignment of those rights. No assertion or claim is made by plaintiff that the partnership or the remaining partners consented to the assignment or the transfer of Salmen’s rights. Under the circumstances, we conclude the trial judge properly maintained the exception of no right of action. The proper party to assert Salmen’s claim against the partnership in liquidation is Salmen himself.

Now turning to plaintiff’s next contention that the trial judge erroneously failed to allow plaintiff to amend by including Raymond F. Salmen as a party plaintiff, we conclude that the trial judge did not err. See LSA-C.C.P. art. 934.

The clear purpose of LSA-C.C.P. art. 934 is in line with the trend toward liberality in pleadings and requires amendment where amendment is possible. We do not interpret LSA-C.C.P. art. 934, however, to apply to the situation before us where the trial judge properly concludes that a plaintiff is not the proper party to assert the cause of action. An amendment might cure failure to state a cause of action, but it cannot cure failure to have a right of action. See Estate, Inc. v. Southern Land Title Corporation, 230 So.2d 341 (La.App. 4th Cir. 1970). In the instant case, the defect cannot be cured by amendment.

Accordingly, we conclude the trial judge properly denied plaintiffs motion for new trial in which he sought to substitute Raymond F. Salmen for Salsul as a party plaintiff. The judgment is affirmed.

AFFIRMED.

BEER, Judge,

dissenting from the denial of granting the application for rehearing filed by Salsul Company.

I would vote to grant a rehearing, being of the view, on reflection, that this court can, and should, frame a judgment which would recognize Salsul’s right to proceed as the transferee of the late Raymond F. Sal-men with respect to any and all rights, interests and causes of action that he has or may have arising out of his agreements with Kohlmeyer & Co. Stated another way, I am now of the view that Salsul should be recognized as having the right to proceed in behalf of the Succession of Sal-men. I am of the view that a judgment could be framed which protects this assignment without granting Salsul any right to involve itself with the management of the partnership simply because it was proceeding in behalf of the Succession of Salmen with respect to its capital participation.

      . Raymond F. Salmen assigned to Salsul Company, plaintiff, any and all rights, interests and causes of action that he has or may have arising out of the partnership agreements executed between Salmen and Kohlmeyer & Co.

      . A more detailed basis of plaintiffs claim is set forth in Salsul Company v. Kohlmeyer, 325 So.2d 858 (La.App. 4th Cir. 1976), writ denied, 330 So.2d 281 (La.1976).

      . LSA-C.C.P. art. 934 provides:
      Art. 934. Effect of sustaining peremptory exception
      “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

      . LSA-C.C. art. 2871 is derived from Article 1861 of The Code Napoleon. This French article is discussed at Planiol, Traite Elementaire de Droit Civil (An English Translation by the Louisiana Law Institute), Vol. 2, Part 2, No. 1975 (p. 176).
      The discussion reads:
      1975. Croupiers or Backers
      “Partnership being a contract, can only exist between the persons who contracted together to establish it. From this it follows, that after the formation of a partnership neither one of the partners can bring into it a new partner without the consent of all the others. Art. 1861 denies them such right, even when the partner is charged with the administration of the partnership. Adding a new partner is not an act of management of the existing partnership; it is a modification of the fundamental contract of partnership and is the equivalent of the formation of a new partnership.
      “But the law permits each partner to join with him someone to share with him the risks and benefits of his share. There is then formed a little partnership of a subordinate character between such partner and the third person with whom he contracts, without the other partners being entitled to benefit from, or being liable on such contract as to which they are strangers (Art. 1861). The third person thus associated in a subordinate way with the operations of the partnership is called a ‘croupier.’ ”