text:
    GENTILLY TIME PAY PLANS, INC. v. Ken J. LaGRUE.
    No. 9629.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Russell J. Nunez, Jr., William J. Dutel, New Orleans, for plaintiff-appellant.

      Allen & Wood, Ronald S. Wood, New Orleans, and Post, Reinhardt & Rougelot, Daniel A. Post, Metairie, O. Foerster Schully, III, New Orleans, for appellees.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

This devolutive appeal by Gentilly Time Pay Plans, Inc. (hereafter, “Gentilly”) is from a judgment setting aside a sheriff’s sale, the proceeds from which have already been returned. The facts leading up to this are quite involved, and the record is not particularly clear. We adduce the following:

On September 29, 1975, Ken LaGrue executed an act of collateral mortgage and a collateral mortgage note, paraphed Ne Var-ietur to identify same with the act of collateral mortgage, in favor of Gentilly, in the amount of $60,000. That collateral mortgage was recorded on October 20, 1975. Thereafter (Gentilly contends), on February 20, 1976, LaGrue executed a promissory note in the amount of $27,369.72, secured by a conventional mortgage (on a single piece of property which is also the only property referred to in the collateral mortgage) in favor of Gentilly and, also, pledged the collateral mortgage note. They further contend that North Lake Properties, Ltd. was a co-maker on this note. Consideration for same is alleged to be a check in the amount of $23,575.61, payable to LaGrue only. On the same date (Gentilly contends), concurrent with the issuance of their check to LaGrue, they subordinated the collateral mortgage to the conventional mortgage. However, prior to the recordation of the conventional mortgage (and the act of subordination), two unrelated judgments against LaGrue were recorded.

Gentilly foreclosed after default of the conventional mortgage note and, subsequently, the district court entered judgment in favor of Gentilly, causing the mortgaged property to be seized and sold to a third party. As a result of claims of privileged ranking by the two judgment creditors whose judgments had been recorded previous to the recordation of the conventional mortgage, the sheriff refused to disburse the funds, and Gentilly instituted a mandamus proceeding to have the priority of their ranking recognized and to compel the sheriff to remit the proceeds of the sale. The sheriff filed a rule to rank creditors, and the judgment creditors were ordered to show cause why the proceeds should not be disbursed to Gentilly. Following a hearing on that rule, the district court set aside the sheriff’s sale and ordered the funds returned to the third party purchaser. There was no valid suspensive appeal, and that order has been carried out. (Note our order of May 31, 1978, in No. 9459, Gentilly Time Pay Plan v. Ken J. LaGrue.) The creditors have never been ranked, and there now exists no fund for them to be ranked in relation to.

Thus, the only matter now before us on this devolutive appeal is the correctness, vel non, of the district court’s action in setting aside the sheriff’s sale.

However, no useful purpose will be served by our deciding that issue since it has been — for all practical purposes — mooted as a result of the actions noted above. Furthermore, the state of the record before us is such that pertinent questions regarding the timeliness of inscriptions and the validity of documents are left unanswered.

Accordingly, the matter is remanded to the 25th Judicial District Court for the Parish of St. Bernard with the following instructions:

Upon proper application by appellant, Gentilly Time Pay Plans, Inc., the district court shall issue such orders as are necessary to provoke a judicial sale of the property more particularly described in the conventional mortgage executed by LaGrue, et al. in favor of Gentilly Time Pay Plans, Inc. and, thereafter, upon proper application of an interested party or parties, shall, in accordance with La.C.C.P. Arts. 1092 and 2592, provoke a hearing for the purpose of ranking those creditors having a claim against the proceeds of that sale, whereupon the distribution shall, thereafter, be made in accordance with that ranking. Each party is to bear its own costs of the proceedings in this court, and all other costs shall await ultimate determination of the litigation. '

REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    AETNA INSURANCE COMPANY v. BOH BROTHERS CONSTRUCTION COMPANY, the Police Jury of St. Bernard Parish, Dept. of Highways of the State of La. et al.
    No. 9630.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    H. F. Foster, III; Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for Boh Bros. Const. Co., Inc., defendant-plaintiff in re-convention-appellant.
    Sylvan J. Steinberg, of Bronfin, Heller, Feldman & Steinberg, New Orleans, for plaintiff, defendant in reconvention and ap-pellee, Aetna Ins. Co.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This appeal involves the dismissal of a reconventional demand by the trial judge’s ruling maintaining exceptions of prescription and no cause of action filed by the defendant. For the reasons below, we reverse.

There are two separate lawsuits involved and the facts are these. The controversy arose out of a one-car accident, injuring Kevin Kern, the passenger. Kevin Kern sued both the driver of the car, Michael Mustacchia, and another defendant, Boh Bros. Construction Co., Inc., alleging their joint and solidary negligence. Aetna Insurance Company was the insurer of the car under a policy issued to Lawrence Kern, owner, providing liability, damage and collision coverage. Aetna was not made defendant in that suit. Boh Bros, settled this claim and obtained a written release and assignment of rights. The extent of the rights transferred by this release is at issue here.

Aetna, as subrogee of the collision claim, later filed a separate suit, which is the subject of this appeal, contending that the accident was caused by the negligence of Boh Bros, and others. Boh Bros, filed a reconventional demand seeking indemnity or contribution for the amount paid in settlement of the Kevin Kern suit. Then Aet-na filed the peremptory exceptions of prescription and no cause of action, the subject of this appeal. The trial judge maintained both exceptions and dismissed the reconven-tional demand. Boh Bros, appeals from this ruling.

I. PRESCRIPTION:

The accident occurred on February 8, 1975. The reconventional demand was not filed until June 8, 1976. Aetna contends, and the trial court found, that the recon-ventional demand was barred by the prescription of one year set out in Article 3536 of the Louisiana Civil Code. Boh Bros., on the other hand, argues that the Kevin Kern suit interrupted prescription as to a claim for damages against Aetna since Aetna and Mustacchia were solidary obligors. They further argue that because such suit was timely filed and never dismissed as to Mus-tacchia, prescription was interrupted with regard to Aetna and never again commenced.

Prescription is interrupted by the timely filing of a suit in a court with competent jurisdiction and in proper venue. L.R.S. 9:5801. It is well settled that a suit filed against an insured interrupts prescription as to the insurer, since an insurer and its insured are solidary obligors. Civil Code Article 2097; Pearson v. Hartford Accident and Indemnity Company, 281 So.2d 724 (1973).

By the terms of the policy in force at the time of the accident, Aetna insured any one driving the automobile owned by Lawrence Kern with the express permission of the owner. Since in its original petition in this suit, Aetna alleges that Michael Mus-tacchia was driving the car with the express permission of the owner, there is no doubt that Aetna was the insurer of the driver. We must conclude, then, that the suit by Kevin Kern interrupted prescription as to Aetna on the cause of action alleged therein.

It is difficult, therefore, to see how prescription could have run on this claim since the release expressly dismissed the Kevin Kern suit only as to Boh Bros, and that suit is still pending against Aetna’s insured. Appellee argues the interruption cannot be used by Boh Bros. Due to the assignment of rights set out in the release and quoted below, however, Boh Bros, now occupies the position of subrogee and is the proper party to enforce the right subrogat-ed. See Code of Civil Procedure Article 697. Prescription, then, does not bar this claim.

II. THE EXCEPTION OF NO CAUSE OF ACTION:

Aetna contends that the release does not operate to reserve all rights which Kevin Kern had since the reservation of rights “had to do with the suit in Civil District Court (the Kevin Kern suit)” and that therefore this is not the express reservation of rights required by Article 2203. Aetna alternatively argues that Boh Bros, should have asserted any rights assigned in the original suit and that they are without power to do so in a reconventional demand in another suit. We find that both of these contentions are without merit.

Revised Civil Code Article 2208 provides in part:

“Art. 2203. The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.”

The pertinent section of the release by Kevin Kern reads as follows:

“ ‘The aforesaid payment is also received in full compromise of the matter entitled: “Kevin Kern vs Boh Bros. Construction Co., Inc. and Michael Mustacchia,” No. 599-046 on the docket of the Civil District Court for the Parish of Orleans, State of Louisiana, and I hereby instruct my counsel of record to file an appropriate motion dismissing said suit as to Boh Bros. Construction Co., Inc. alone, all rights which I have or may have against Michael Mustacchia and/or Aetna Insurance Co. as his liability insuror are specifically reserved and hereby assigned to Boh Bros. Construction Co., Inc. as additional consideration for the payment herein made, with prejudice, each party to pay their own costs.’ ”

It is difficult to imagine a release and assignment of rights which is more express in its language. Kevin Kern specifically reserved and assigned all rights which he possessed to Boh Bros. To require more is to ignore the clear meaning of the document.

Aetna’s alternative contention is equally incorrect under the express language of Code of Civil Procedure Article 1113 which reads as follows:

“A defendant who does not bring in as a third party defendant a person who is liable to him for all or part of the principal demand does not on that account lose his right or cause of action against such person, unless the latter proves that he had means of defeating the action which were not used, because the defendant either failed to bring him in as a third party defendant, or neglected to apprise him that the suit had been brought. The same rule obtains with respect to a defendant in reconvention who fails to bring in as a third party defendant a person who is liable to him for all or part of the reconventional demand.”

See also the decision of this court in Futch v. Nolden, 221 So.2d 351. (La.App. 4th Cir.1969). Since there is no allegation that Aetna had a means of defeating the action which was not used, Boh Bros, is free to assert its rights in a reconventional demand.

It is therefore Ordered that the judgment maintaining the exceptions be reversed. The case is hereby remanded to the trial court for trial of the issues involved. Costs of this appeal to be paid by the appellee, Aetna Insurance Company.

REVERSED AND REMANDED.


author: STOULIG, Judge.

text:
    SUCCESSION of Lloyd A. MONTERO, Sr.
    No. 9631.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.

      Legier, McEnerny, Waguespack, Kuhner, Scoggin & Strong, William J. Waguespack, III, New Orleans, for Mrs. Jeanne S. Scior-tino, appellee.
    Charles J. Lange, A. S. Cain, Jr., New Orleans, for Lloyd A. Montero, Jr., and Ronald J. Montero, appellants.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

This appeal concerns the validity of an olographic will executed by Lloyd Montero, Sr., which reads:

“5/29/74
To Lloyd & Ronnie
In the event I do not come out of this surgery O.K. I want you & Lloyd and Jeanne to divide everything up between the three of you.
This would be my last wish and I would hope that it would be carried out.
Love
Lloyd, Sr.”

The proponent of this will is Jeanne Sciortino, decedent’s fiancee at the time of his death, and the opponents — appellants in this court — are the testator’s sons, Lloyd Montero, Jr., and Ronald Montero. The alternative to probate in this instance is intestacy.

The will is valid as to form. Although numeral dating has been declared by our jurisprudence to be insufficient as to form in an olographic will, extrinsic evidence may be resorted to for determining with certainty the date on which the will was written. (Succession of Boyd, 306 So.2d 687 [La.1975]). In this case, the fact that it was written May 29, 1974 while the testator was awaiting a surgical procedure is beyond dispute.

Appellants base their challenge on two assertions: (1) the testator lacked testamentary capacity at the time he executed the will; and (2) the will would have become effective only in the event the testator did not survive the surgical procedure.

The record establishes the capacity of the decedent to execute a will at the time this document was written. Dr. Frank Schmidt, a cardiovascular surgeon, visited Lloyd Montero, Sr., in his hospital room at Baptist Hospital, at 7:30 p. m. on May 29, to discuss the upcoming surgery (the placing of a shunt in his am so that his blood could be dialyzed through the kidney machine and returned purified to his body). Dr. Schmidt testified the patient was fully lucid when he signed the consent slip for the surgery.

Dr. Maurice Pearl, the internal medicine and nephralgic specialist who admitted the elder Montero to the hospital, found him lethargic, a condition prevalent in patients suffering the kidney problem the testator had. However though Dr. Pearl used the term mentally impaired a fair interpretation of his testimony requires us to negate the hypothesis that decedent was not lucid when he executed his will. Testamentary capacity is always presumed until convincing proof is presented to rebut this presumption. Succession of Dixon, 269 So.2d 323 (La.App. 2d Cir. 1972); and Succession of Turner, 157 So.2d 740 (La.App. 2d Cir. 1963). We hold the opponents have failed to establish their allegation of testamentary incapacity.

As to the second assertion that the will became operative only “in the event I do not come out of this surgery O.K. * we point out this interpretation contravenes C.C. art. 1712, et seq. First the court must look to the document to ascertain the intent of the testator (C.C. art. 1712) and interpret a disposition in the sense that will give it effect (C.C. art. 1713). Applying these articles, we interpret the quoted phrase to mean “in the event of my death * * * ” I leave Jeanne and my sons my property to divide up “between the three of you.” Obviously the testator wished to name his fiancee as an heir, otherwise why write a will at all? Decedent had the opportunity to write another will after his discharge from the hospital on June 8 until his death on August 27 had he desired to do so. We conclude that the duration of his survival after implant of the shunt is of no moment.

For the reasons assigned, the judgment appealed from is affirmed. Appellants are to bear all costs of this appeal.

AFFIRMED.

      . In Succession of Lefort, 71 So. 215 (La.1916), the Court reasoned there is “a physical difference between a document without a date and one with an uncertain date” and it approved the use of extraneous evidence to remove the uncertainty or ambiguity. See also Succession of Gaudin, 98 So.2d 711 (La.App. 1st Cir. 1958).


author: LEMMON, Judge.

text:
    COMMUNITY ASSOCIATES, INC. v. Joseph L. ST. CLAIR.
    No. 9655.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Sidney I. Goldman, Gretna, for plaintiff-appellee.
    Schafer & Schafer, Thomas E. Schafer, III, New Orleans, for intervenor-appellant, Pauline Aserción St. Clair.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Mrs. Pauline St. Clair has appealed from a judgment maintaining an exception of no cause of action to her petition of intervention, by which she had claimed the benefits of the homestead exemption in a judicial sale.

Mr. and Mrs. St. Clair acquired the Orleans Parish property in 1967, during the existence of the community, and thereafter resided there. In 1974 Mr. St. Clair executed a promissory note secured by a mortgage on the property in which he waived the homestead exemption. However, his wife did not join in the mortgage and thus did not waive the homestead exemption.

Mr. St. Clair was adjudicated a bankrupt in 1975. On February 14, 1977 Mrs. St. Clair filed an affidavit claiming the homestead exemption in the mortgage office, and on the next day plaintiff obtained a money judgment against Mr. St. Clair which recognized the mortgage on the property. When plaintiff obtained issuance of a writ of fieri facias, Mrs. St. Clair intervened and requested that she be paid $15,000.00 by preference over plaintiff because of the homestead exemption. Plaintiff filed an exception of no cause of action on the basis that the relief would impair the obligation of the mortgage contract. The trial court maintained the exception, and Mrs. St. Clair appealed.

La.Const.1921, Art. XI, § 1, continued as a statute by La.Const.1974, Art. 14, § 34 (which also raised the exemption to $15,-000.00), provides that the bona fide homestead owned and occupied by the debtor shall be exempt from seizure and sale to the value of $4,000.00 (now $15,000.00) and that the debtor shall be entitled to that amount when the sale under legal process realizes more than that sum over and above all costs and expenses. The section further provides that the sale is null and void if the sale realizes less than that sum.

Citing that section, Mrs. St. Clair argues that either the sale is null or she is entitled to $15,000.00. However, La.Const. 1921, Art. XI, § 4 (also continued in effect as a statute) provides that while the homestead exemption exists without recordation in other parishes, the exemption is not valid in Orleans Parish unless recorded.

The issue framed by the facts of this case is whether the exemption is effective against a mortgagee when the declaration was recorded almost three years after execution of the mortgage.

Inasmuch as Mrs. St. Clair had not recorded a declaration of homestead when the mortgage was executed in 1974, no valid homestead exemption then existed in her favor, and there was no need for plaintiff to require that she join in the mortgage and waive the exemption. The subsequent rec-ordation of the declaration could not prejudice the rights of creditors of the homestead owner who had advanced money at a time when there was no valid exemption in existence. Clarke v. Natal, 138 La. 1038, 71 So. 149 (1916).

The judgment is affirmed.

AFFIRMED.

      . Under Acts 1977, No. 446, the declaration of homestead exemption in all parishes must be recorded in order to be effective. This act was apparently adopted pursuant to La.Const. 1974, Art. 12, § 9.


author: REDMANN, Judge.

text:
    Mrs. Leslie J. Estopinal HAYDEL et al. v. AETNA LIFE AND CASUALTY INSURANCE CO.
    No. 9663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    John G. Villarrubia, Harold E. Dearie, II, Metairie, for plaintiffs.
    Lloyd W. Hayes, Adams & Reese, New Orleans, for defendant.
    Before REDMANN, SCHOTT and BEER, JJ.
   REDMANN, Judge.

Plaintiff-appellant argues that a Mississippi death certificate and coroner’s jury verdict are admissible to prove that her husband died by accident from “anoxia, induced by valium, librax and alcohol.” Then, because indulgence in alcohol arose out of and in the course of his employment to generate good will and develop business at the convention at which he died, plaintiff argues she and her children are entitled to workmen’s compensation benefits.

We agree with the trial court that the death certificate and verdict, although admissible to show the fact of death, were not admissible for the purpose of establishing the physiological or pharmacological causes of death. If Mississippi evidentiary law were applicable (as appellant argues), Miss.Code 41-57-9 would admit a death certificate as prima facie evidence “of the facts therein stated” (emphasis added). However, (as in Louisiana, Franklin v. Old Colony Ins. Co., La.App. 4 Cir. 1963, 150 So.2d 892, writ refused, 244 La. 472, 152 So.2d 564) being evidence of facts such, perhaps, as “the prime physical cause of death” does not make the certificate evidence of the correctness of opinions it states; Massachusetts Protective Assn. v. Crawford, 1924, 137 Miss. 876, 102 So. 171, 173. The opinion evidence is especially dubious in this death certificate because neither the coroner nor any member of his jury purports to be a physician.

We do not reject plaintiff’s underlying theory that benefits may be due for the death of an employee from the interaction (said possible by an expert pharmacist) of his normal medications with the alcoholic beverages he drinks while entertaining at a convention for his employer. However, presumably because she was not preparing for trial during her period of greatest grief, plaintiff did not then obtain and at trial did not present evidence, such as of the blood levels of the various drugs, from which experts might have proved her theory of the cause of death. Plaintiff does have the burden of proving her case and she was unable to do so. The best evidence is only that her husband was 38 years old and did drink at the convention (there is no evidence that he there took valium or librax, and the evidence is that he did so only occasionally). This evidence does not make it more probable than not that he died from the alcohol he drank while entertaining for his employer.

Affirmed.


author: SAMUEL, Judge.

text:
    Tommy POUNDS v. ECOFF TRUCKING, INC. and A B C Insurance Company.
    No. 9756.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Levenson & Bonin, Paul A. Bonin, New Orleans, for plaintiff-appellant.

      Adams & Reese, Edward J. Rice, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff instituted this suit against his employer and his employer’s compensation insurer for total and permanent disability benefits under the Louisiana Workmen’s Compensation Act. After a trial on the merits, judgment was rendered in favor of the defendants, dismissing plaintiff’s suit at his cost. Plaintiff has appealed.

Our settled jurisprudence is that in a compensation case, as in other cases, the plaintiff bears the burden of proof; he is required to establish his claim by a reasonable preponderance of the evidence.

The issues presented are whether plaintiff has carried his burden of proving: (1) he sustained injury by an accident arising out of and in the course of his employment; and (2) if such an accident did occur, the injuries resulting therefrom were disabling under the statute.

The only evidence contained in the record relative to the occurrence of the accident is the testimony of plaintiff himself and that of his wife. He testified: On June 3, 1976, while working as a truck driver for Ecoff, he delivered a load of molasses to the Y. & S. Candy Company in Moline, Illinois. In attempting to take a molasses sample from the top of the tank truck, he climbed a defective ladder and fell “head first on the concrete”. He was unconscious for some time and was assisted thereafter by several workmen who were repairing the street. He then proceeded to unload the truck. While unloading he made several collect calls to Ecoff’s LaPlace, Louisiana terminal but received no answer. After completing his duties in Moline, he drove to Peoria, Illinois, where he again attempted to call the LaPlace terminal, but got no answer. He stayed at Peoria for about eight hours and went to Clarksville, Indiana, where he dropped the trailer and tried to phone Ecoff at their main office at Fordville, Indiana, but again received no answer. From there he went to Jackson, Tennessee, where he again phoned Ecoff, but was unable to reach anyone. He stayed at Jackson for eight hours and drove to Vaiden [sic], Mississippi, where he called the Fordville and LaPlace offices of Ecoff without receiving an answer. On Sunday, June 5, he drove into the LaPlace terminal. No one was there, so he phoned his wife to pick him up and tried to call Mr. John Cosían, his supervisor, at the latter’s home but was unable to reach him. The following morning, Monday, he talked to Cosían at the terminal, telling him about the accident and stating he needed a doctor. Cosían told him that Mr. Ferrell (the company vice president) would be there on Wednesday and to wait until that time. He had suffered with a severe headache and a nose bleed in Peoria and when he arrived back in LaPlace on Tuesday he called a Dr. Palmer and went to the Eye, Ear, Nose and Throat Hospital in New Orleans. On Wednesday he went to the LaPlace terminal and spoke with Ferrell and Jim Ecoff, the company safety director. On Thursday he went to see Dr. R. J. Sanders. He later saw a Dr. Ganu-cheoux, and Dr. Ureta and subsequently was hospitalized and underwent surgery at East Jefferson Hospital.

On cross examination plaintiff admitted he did not make any entry in his log indicating an accident on June 3, 1976 and it was further established that plaintiff was ordered to drop the trailer off at Clarks-ville, Indiana but instead he left it at Tusco-la, Illinois, and attempted to charge the company mileage for having left it at Clarksville.

The plaintiff’s wife testified she received a telephone call from her husband on Sunday, June 5 (we note that June 5, 1976 was a Saturday). He requested that she have someone pick him up at the LaPlace terminal because he had been injured. She and their son drove to the terminal and helped plaintiff get out of the truck. He had some blood on his shirt and told her he had fallen off a truck. Then she admitted he drove the car and the son drove the truck.

Plaintiff claims at the time of the accident one of the men from the road crew who assisted him tore off a trip report sheet from Ecoff Trucking, Inc. and wrote on the back thereof. The trip report was offered in evidence. The handwriting thereon reads: “On the third day of June I saw the driver of a Tank truck fall from the top of the tank believe Y. & S. Candy Company Tank No. 589, Tractor No 678.” It is signed “Randy Smith, Glude Washington, Strde fountain, A. S. Conwell. Monline, Illinois.” No addresses are given and all of the writing, including signatures appear to be in the same handwriting.

In further support of his claim, plaintiff introduced the deposition of Russell Williams of East Moline, Illinois, an electrician and maintenance man at the Y. & S. Candy Company plant at the time the alleged accident occurred. Williams knew plaintiff by sight, but could not identify him by name. He knew plaintiff had delivered molasses on June 3, 1976 but knew nothing whatsoever about any accident. To the best of his knowledge no one at the plant had any knowledge of the alleged incident until someone from the insurance company came at a later date to attempt to take a statement. At that time Frank Krohn, employed by Y. & S. Candy Company, stated he remembered a man coming in and saying he fell off a truck but he was unable to tell who the man was.

Plaintiff did not attempt to depose Frank Krohn nor was Krohn called as a witness.

Defendant introduced the testimony of John Cosían, Ecoff’s terminal manager at the time of the accident, Wayne Turner, an Ecoff truck driver, and Robert Ferrell, vice president of traffic and sales for Ecoff. Their testimony was generally to the effect that someone is available to answer the telephone at the trucking company on a 24 hour basis; in fact, the LaPlace terminal has three telephone lines just for that purpose. Cosían stated that on June 2, 1976 plaintiff left from LaPlace for Moline, Illinois. He was next seen by Cosían on Saturday, June 5,1976 at which time plaintiff did not indicate any injury, nor that he was feeling ill. Cosían did not see plaintiff’s wife at the plant. On the following Monday, June 7, Cosían called plaintiff to do some work but plaintiff declined, claiming he felt dizzy. He gave no indication of having suffered any injury in Moline, Illinois. The following day plaintiff arrived at the terminal and spoke with Cosían and Ferrell asking to be excused from scrubbing down his unit with Ferrell because he was dizzy, under a doctor’s care and on medication. At no time did he disclose an incident in Moline. On the following day, June 9, Cosían again called plaintiff to work and plaintiff again declined. Ferrell contacted plaintiff by phone to discover the name of the doctor he was allegedly seeing. Plaintiff gave him the name of Dr. Sanders on Jefferson Highway claiming to have been treated by the doctor for dizziness. Upon inquiring at the office of Dr. Sanders, Ferrell discovered plaintiff had not visited the doctor that week. On Thursday, June 10, 1976, Ferrell phoned the plaintiff telling him the results of his conversation with Dr. Sanders’ office and informed plaintiff that his employment would be terminated if he could not produce doctor bills or receipts to substantiate his stories of the visits. Plaintiff complained only of dizziness and ear trouble and never told the defendant witnesses about an accident in Illinois. On Thursday afternoon plaintiff arrived at the terminal. He was unable to produce any doctor bills or receipts. He arrived staggering and was fired. About a week and a half after he was fired, plaintiff first notified Cosían and Turner that he had been injured in an accident in the course of his employment in Moline, Illinois.

A careful study of the record does not establish manifest error in the trial court’s conclusion. He found plaintiff had failed to produce one witness to confirm his accident and did not give a history of the accident to any physician until after he was fired. The trial court further pointed out that the parties had more than one month’s knowledge of the existence of Frank Krohn, who allegedly witnessed the accident, yet Krohn’s deposition was never taken nor was he called as a witness.

Plaintiff claims they were unable to depose Krohn for lack of funds. Inasmuch as Mr. Krohn was still employed by Y. & S. Candy Company at the time the deposition of Russell Williams was being taken in Mo-line, it should have been a very simple, inexpensive process to depose Mr. Krohn at that time.

The first issue on appeal is whether plaintiff’s claim that he was injured in the course and scope of his employment is to be accepted or rejected. In making his determination, the trial court evaluated the conflicting testimony and weighed the accepted testimony. It is a fundamental rule of appellate review that the trial judge’s factual determination will not be disturbed in the absence of manifest error. This rule is particularly applicable where the testimony is conflicting and the trial court must evaluate the credibility of the witnesses. Here, there is sufficient evidence to furnish “a reasonable factual basis for the trial court’s finding.”

We find it unnecessary to discuss the second issue, whether plaintiff is disabled. Compensation cannot be recovered for disability allegedly resulting from an accident in the absence of sufficient proof that the accident arose out of and in the course of plaintiff’s employment.

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

AFFIRMED.

      . Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1; Nickelberry v. Ritchie Grocer Co., 196 La. 1011, 200 So. 330; Hughes v. Chrysler Corporation, La.App., 216 So.2d 636.

      . LeDoux v. Calcasieu Parish Police Jury, La. App., 326 So.2d 387; Breaux v. Great Atlantic & Pacific Tea Co., Inc., La.App., 302 So.2d 672; Comeaux v. D. & A. Construction, Inc., La. App., 220 So.2d 129; Richard v. National U.P.F. Ins. Co. of Pittsburgh, Pa., La.App., 189 So.2d 460.

      . Canter v. Koehring Company, La., 283 So.2d 716, 724.


text:
    Sonja RANSON v. ORLEANS PARISH SCHOOL BOARD.
    No. 9795.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Writ Refused Feb. 9, 1979.

      Trevor G. Bryan, Jefferson, Bryan & Gray, New Orleans, for Orleans Parish School Bd., defendant-appellant.
    John P. Nelson, Jr., Larry Samuel, New Orleans, Richard G. Vinet, Gretna, Nelson, Nelson & Lombard, Ltd., New Orleans, for Sonja Ranson, plaintiff-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This appeal is from a judgment awarding a teacher workman’s compensation benefits, statutory penalties, and attorney’s fees and court costs against the Orleans Parish School Board. The School Board has appealed, assigning four errors.

Sonja Ranson is a high school teacher who was injured on January 3, 1977 while returning to her classroom from the teacher’s lounge at McMain High School. She was struck on the head by a glass apothecary jar thrown by an unknown assailant, was knocked unconscious and fell on the stairs. In addition to a severe laceration of her scalp, she suffered pains in her head and neck and her left wrist. The School Board paid most of her medical expenses, but refused to pay for some physical therapy sessions, a hydroculator, and a second wrist x-ray, totally $61.72.

The trial judge awarded plaintiff this sum, together with the statutory penalty and attorney’s fees provided by L.R.S. 23:1201.2(A), and these awards are the bases of appellant’s first two assignments of error. Appellant contends that these items were not necessary and simply reflect the whim of the employee for which it is not responsible. However, the trial judge “found absolutely no justification for the School Board not having paid the other medical expenses, trivial though they may seem”. We agree. Considering the blow received and the fall, and the medical treatment resulting therefrom, the award is amply justified. The School Board’s position seems to be basically that the reports received from the doctor were not specific enough to warrant payment, a position we find to be entirely baseless. Accordingly, we agree with the trial judge’s award of the statutory penalties for arbitrary nonpayment of these items.

Appellant contends however that it is a public body and as such is not responsible for payment of such penalties. This argument is answered bluntly by Louisiana Revised Statute 23:1034 which expressly applies the provisions of the Workman’s Compensation Laws to every person in the service of the state or political sub-divisions thereof, etc. and that “for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory”. We hold that this includes the penalties provided by L.R.S. 23:1201.2. We see no incompatibility between this statute and the constitutional policy of the state provided in the Constitution of 1974, Article 12 § 10. As we interpret those constitutional guidelines, the legislative authorization for state liability under the Workman’s Compensation Statute are permitted.

The next issue is the entitlement of plaintiff for the expense of a wig, costing $174.90. The trial judge awarded this amount stating:

“I assign the following reasons for the judgment with respect to the wig. I recognize that it may not fit exactly the definition of a prosthetic device in the Workmen’s Comp Act, but I hold it to be a device similar to one which might permit someone to ambulate without making them — well, such as a crutch, which I don’t think is technically a prosthetic device or a walker, which is not technically a prosthetic device, but permits someone to operate and function in connection with employment, and I hold, having reviewed the photographs, that it would have been practically impossible for this lady to teach in that particular school for a significant period of time, certainly a matter of some weeks and perhaps a couple of months, without a wig and that under those circumstances, the wig was a necessary device to permit her to perform the duties of her employment, whether it was technically speaking a medical device or not.”

L.R.S. 23:1203, providing for such matters, reads as follows:

“In every ease coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal.
“The employer likewise shall furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment, including but not limited to damage or destruction of eyeglasses, artificial limbs, hearing aids, dentures, or any such prosthetic devices whatsoever.”

The purchase of the wig came about in this manner. As a result of the blow to her head, plaintiff received large lacerations of her scalp, and it was necessary that a considerable part of her head be shaven in order to properly treat that wound. As a result, plaintiff had a bald spot in the front, right side of her head, constituting approximately 25% of the hair on that side. In the center of this bald spot were the sutured wounds showing considerable disfigurement. After approximately two weeks of treatment, plaintiff returned to her duties as a high school teacher, and because of the unsightly nature of her condition, she felt that she could not appear in class without having the area covered by a wig.

Although we cannot classify the wig as a medical service, we do believe, as stated by the trial judge, that this device permitted her to operate and function in connection with her employment. We must take notice that a teacher is required to appear before the pupils in her class in order to instruct them, and that the teacher’s appearance is expected to be neat and attractive in order to serve as a model for the students’ appearance. Certainly, the teacher would be distracted from her duties by her embarrassment and self-consciousness caused by appearing before the pupils with a partially shaved and wounded head. In a recent tort case, Horton v. Seligman & Latz, Inc., 260 So.2d 731 (La.App. 4th Cir. 1972), we recognized the embarrassment that a professional woman suffered from loss of hair. In addition, we think some distraction would be caused to the students by the teacher’s appearance in such a manner. Additionally, presuming that the policy of mitigation of damages applies at least in principle to Workman’s Compensation cases, it is difficult for us to perceive how this teacher’s good faith effort to rehabilitate herself quickly in order to return to work, and thus save workman’s compensation weekly payments and the appointment of a substitute teacher should require her to bear this expense of substituting false hair for her own hair during the period that her hair takes to regrow. We agree with the decision of the trial judge.

The last issue is the trial court’s assessment of court costs against the School Board. After the rendition of the judgment below the Supreme Court of Louisiana handed down its decision in the case of Segura v. Louisiana Architect’s Selection Board, 362 So.2d 498 (La.1978) and that case is decisive of the issue. The court held that costs of court are part of the “liability” to which a party cast in litigation is subject, and held that the plaintiff in that case was entitled to a judgment against the state for the costs incurred and advanced by him through all phases of the litigation. We agree with the trial judge’s assessment of costs against the School Board.

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

AFFIRMED.


text:
    STATE of Louisiana In INTEREST of Roger JOHNSON.
    No. 9914.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Lawrence A. Wheeler, New Orleans, counsel for relator.
    Harry Connick, Dist. Atty., for Parish of Orleans, for respondent.
    Before REDMANN, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Roger Johnson, a juvenile, was adjudicated to be a delinquent juvenile and committed to the Louisiana Department of Corrections to be evaluated for placement. He applied to this court for writs of certiorari and prohibition, praying for release from confinement on the ground that the judgment of the Juvenile Court and the commitment orders rendered thereafter were improper. We issued certiorari to review the record and make a determination of the validity of the proceedings complained of. The application made a showing that the error was apparent on the face of the record, resulting in the improper commitment of the juvenile. Accordingly, we felt the exercise of our extraordinary supervisory powers was justified.

Our review of the record does indeed show that there is an error apparent on the face of the record. The ultimate finding of the trial judge, upon which the adjudication of delinquency was based, was not responsive to the charge as specified in the petition filed against him, and cannot serve as a basis for a disposition of commitment. It is necessary to set out in some detail the proceedings below.

Roger Johnson, aged 14, was arrested in connection with an armed robbery, and a petition was filed against him in the Juvenile Court for the Parish of Orleans representing that he is delinquent as provided in R.S. 13:1570(A)(5) by violating Louisiana Revised Statutes 14:64 relative to robbery while armed with a dangerous weapon, and specifying the details of that crime. Trial was had on March 1, 1978 with the court making the following finding:

“After considering the evidence in this matter Roger Johnson is found delinquent as charged and he is ordered detained in the Youth Study Center, case continued and set for disposition on March 16, 1978, at 10:00 A.M.”

On March 16, 1978, three events occurred according to the minutes. The trial judge ordered that his “order of March, 1, 1978 be corrected to show that Roger Johnson is found guilty of conspiracy to commit armed robbery”. The attorney for the juvenile filed a motion for a new trial. The trial judge then denied the motion for a new trial and committed Johnson to the Southeast Louisiana Hospital at Mandeville, Louisiana for observation, evaluation and/or continued treatment. It should also be noted that after evaluation at the hospital, on August 15, 1978, Johnson was discharged from the hospital and committed “to the Louisiana Department of Corrections to be evaluated by its Diagnostic Evaluation Center for placement.”

The Louisiana Constitution of 1974, Article 1 § 13, requires that an accused shall be informed of the nature and cause of the accusation against him. Consistent with this provision, L.R.S. 13:1574 provides that the petition which is filed in juvenile proceedings shall set forth with specificity the facts which bring the child before the court and requires that, if a violation of law is the basis for filing the petition, the petition shall cite the Statute alleged to have been violated. The petition in this case represents a violation of R.S. 14:64, armed robbery, and recites the necessary facts to a commission of that offense. No disagreement is had with the sufficiency of the petition itself. The problem arises as a result of the judge’s findings, or verdict, after trial of the petition.

In the case of In re State in Interest of Hampton, 257 So.2d 459 (La.App. 1st Cir. 1972) the court announced (P. 460) that the following principle was not well established in our law:

“Third, that a juvenile may not be adjudged delinquent unless his guilt of the specific charges against him is shown in accordance with the foregoing principles. That is, a judge may not make a finding of delinquency based on misconduct other than that which is set forth in the petition. This would violate the constitutional right of the juvenile to be notified of the charges against him. State in Interest of Ogletree, 244 So.2d 288 (La.App. 4 Cir. 1971); In re Gault, supra.” (In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In the record, we note that after trial, the court found Johnson delinquent as charged, and then at the dispositional hearing, ordered the correction of that finding to show that Johnson was found guilty of conspiracy to commit armed robbery. Referring to the Code of Criminal Procedure we determined that a finding of guilty of conspiracy to commit armed robbery is not one of the responsive verdicts which may be rendered where armed robbery is charged. C.Cr.P. Art. 814(19). The crime of criminal conspiracy is set out in L.R.S. 14:26 and contains elements not contained in this petition or in R.S. 14:64. The commitment was based on the judge’s conspiracy finding, and hence the juvenile was committed on a charge other than that specified by the petition filed against him. See for example State in Interest of Simon, 295 So.2d 473 (La.App. 3rd Cir. 1974).

The application for certiorari prays that we vacate and rescind the order of commitment because it is based on this erroneous finding and that we order the immediate release of the juvenile. On the other hand, the State points out that if we declare the judge’s finding of conspiracy to be error, nevertheless there still remains the judge’s original finding of delinquent as charged, and the juvenile should be remanded to the Juvenile Court for another dispositional hearing, and possible commitment based upon the original finding. We disagree with the State’s contention.

There appears to be some confusion in the record as to what the exact verdict was. It appears to us that the judge’s final decision was perhaps based upon a conclusion that the juvenile should be found guilty of a lesser grade of the offense of armed robbery, a very serious offense within that category of crimes which may justify handling of a juvenile 15 years old or older in the adult court. In any event, it is obvious that the court did not find the juvenile not guilty or not delinquent. We can only conclude that the judge did not render a responsive verdict in accordance with the petition filed against this juvenile with the result that the trial is a mistrial.

Although this case does not require deciding the applicability of any of the Code of Criminal Procedure, we note that, at best by analogy, at this point the trial judge might have remanded himself to further consider the verdict, as he would remand a jury which gave a nonresponsive verdict, C.Cr.P. 813; or he might have granted the equivalent of a motion in arrest of judgment, C.Cr.P. 859(5), with the result of remanding the “defendant” to custody or bail for new trial, C.Cr.P. 862; or, possibly, he might have simply granted a new trial on the ground that the verdict was “contrary to the law”, C.Cr.P. 851(1), because not responsive.

Because of the discretion granted to the Juvenile Court under the provisions of R.S. 13:1574, we need not order one of these alternatives rather than another. Instead we refer this matter back to the Juvenile Court which shall take whatever action the interest of the public or of the child require.

For the reasons above assigned, IT IS ORDERED, ADJUDGED AND DECREED that the commitment of the applicant Roger Johnson be vacated and annulled and he is ordered discharged from the Department of Corrections into the custody of the Juvenile Court for the Parish of Orleans for such further action as the interest of the public or of the child require.

COMMITMENT ANNULLED.


author: GULOTTA, Judge.

text:
    A. BALDWIN & COMPANY, INC. v. B & R FENCES, INC.
    No. 9964.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Milling, Benson, Woodward, Hillyer, Pier-son & Miller, Wilson S. Shirley, Kennedy J. Gilly, Jr., New Orleans, for plaintiff-appel-lee.
    Patrick D. Breeden, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

In an open account case where the affidavit of correctness of the account is executed by an officer of the plaintiff corporation and refers to invoices attached to the petition showing receipt of merchandise by defendant from a corporation other than the plaintiff corporation, no prima facie proof has been established to support a default judgment in favor of plaintiff. CCP 681; CCP 690; CCP 1702; Eddie’s Hardware, Inc. v. Rago, 320 So.2d 276 (La.App. 4th Cir. 1975); Carboline Co. v. Hymel 335 So.2d 45 (La.App. 4th Cir. 1976).

Accordingly, the judgment is reversed and set aside. The matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . The affidavit of correctness of the account is signed by the Executive Vice-President of A. Baldwin and Co., Inc., plaintiff, and refers to invoices attached to the petition. The invoices are of Southern Steel and Aluminum Corp. and indicate that the merchandise was sold by Southern Steel to the defendant company. Neither the petition, the invoices nor the affidavit shows any connection between Southern Steel and the plaintiff corporation.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. Kenneth E. PICKERING, the Louisiana Commissioner of Financial Institutions.
    No. 10059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 27, 1978.
    Writ Refused Dec. 1, 1978.

      William J. Guste, Jr., Atty. Gen., John R. Flowers, Jr., Asst. Atty. Gen., Chief Antitrust Section, and John H. Ryan, Asst. Atty. Gen., Dept, of Justice, for plaintiff-appellant.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for defendant-appellee.
    Sanders, Downing, Kean & Cazedessus, R. Gordon Kean, Jr. and Charles S. McCow-an, Jr., Baton Rouge, for Central Appraisal Bureau, Inc.
    Before SAMUEL, BEER and BAILES, JJ.
   SAMUEL, Judge.

Ex relatione the Attorney General of Louisiana, plaintiff filed this suit against Kenneth E. Pickering, Louisiana Commissioner of Financial Institutions, seeking to enjoin the defendant from requiring (as alleged) that all state chartered savings and loan associations located in the New Orleans Metropolitan area exclusively use the appraisal services of Central Appraisal Bureau, Inc. (C.A.B.). Plaintiff’s petition avers that required activity was in violation of LSA-R.S. 51:121 et seq., which prohibits monopolies and restraints of trade or commerce and provides for penalties for violation thereof.

Subsequent to the filing of the suit, plaintiff noticed the taking of the deposition of C.A.B. Defendant and C.A.B. then filed motions to quash the taking of that deposition. Following a hearing, there was judgment granting the motions to quash. Plaintiff has appealed from that judgment. Defendant has answered the appeal. In addition, this court issued an ex proprio motu rule ordering plaintiff to show cause why the appeal should not be dismissed on the apparent ground that the appeal had been taken from a nonappealable judgment, and plaintiff filed a motion to dismiss defendant’s answer to the appeal.

The matter is not now before us on the merits. At issue at this time are only our rule to show cause and plaintiff’s motion to dismiss defendant’s answer.

Our concern regarding the nonappealability of the judgment appealed from was based on the fact that the judgment is interlocutory, for the reason that it does not determine the merits but only preliminary matters in the course of the action, and as such may be appealed from only if it may cause irreparable injury. On its face the trial court judgment apparently would not cause such irreparable injury as would result in it becoming an appealable judgment.

We now find we were in error in applying the general rule regarding appealable judgments to this case which comes under the sui generis statutory law relative to monopolies and restraints of trade or commerce contained in LSA-R.S. 51:121 et seq. A section of that statutory law, LSA-R.S. 51:135, provides:

“All interlocutory judgments in the cases affected by this Part, and not otherwise provided for, shall be appealable within five days and shall be heard and determined within twenty days after appeal is lodged, and any interlocutory judgments not appealed, except those rendered during the progress of the trial, shall be final, and shall not be reopened on final appeal. Such appeals shall be on the original papers, on the order of the district judge, if a transcript cannot be prepared in time.”

Generally, the usual appeal not coming under the statute in suit brings to the appellate court the whole case or any part thereof which the appellant desires to have reviewed. Thus, interlocutory judgments are before the appellate court in the usual appeal, and errors in such judgments can be corrected following a hearing on the merits of the appeal. That is the basic reason why interlocutory judgments are not appealable unless they may cause irreparable injury. This reasoning does not apply in the instant case which is controlled by the above quoted LSA-R.S. 51:135. Under that section all interlocutory judgments are ap-pealable unless “otherwise provided for” in the statute and in the absence of such an appeal all interlocutory judgments become final and “shall not be reopened on final appeal”. We do not find that discovery is “otherwise provided for”. Thus, our conclusion must be that the interlocutory judgment herein appealed from, although dealing only with discovery, need not cause irreparable injury in order to be appealable. It is appealable, regardless of the presence or absence of possible irreparable injury. Indeed, the appeal provided for in LSA-R.S. 51:135 is not only permitted, it is an absolute necessity on the part of plaintiff because the judgment appealed from becomes final in the absence of an appeal. We therefore conclude that the appeal cannot be dismissed.

We now address ourselves to plaintiffs motion to dismiss the defendant’s answer to the appeal. The answer seeks to have the judgment appealed from modified or revised so as to: permanently enjoin the plaintiff from taking the deposition of C.A.B.; restrain the plaintiff from taking testimony irrelevant to this case; set forth conditions, qualifications and limitations on any further requested deposition; grant an appropriate protective order; and, in the alternative event that there should be another deposition scheduled in the future, state that such further order should name the individual whose testimony plaintiff proposes to take. Finally, the answer seeks dismissal of plaintiff’s suit “inasmuch as the Court now has the entire record before it”.

An answer to an appeal is equivalent to an appeal, the only material difference being the fact that an answer to an appeal must state the relief demanded whereas, as we have said, the usual appeal brings up for review all or any portion of the judgment appealed from which the appellant desires to have reviewed.

Code of Civil Procedure Article 2133 specifically permits the appellee, by answer to the appeal, to seek to have the judgment appealed from “modified, revised, or reversed in part”. It is clear that, with the exception of the request for a dismissal of plaintiff’s suit, all of the matters complained of in the answer are concerned with seeking modification or revision of the judgment appealed from. These are properly before this court by way of. the answer and, as to them, the answer cannot be dismissed. The result is just the opposite regarding that portion of the defendant’s answer which seeks dismissal of plaintiff’s suit. There is no trial court judgment which either dismissed the suit or refused to dismiss the suit. Thus, the answer contains no basis for dismissing the suit; as to dismissal, there is nothing for this court to review either by way of appeal or answer thereto.

For the reasons assigned, it is ordered that the ex proprio motu rule issued by this court ordering the plaintiff to show cause why the appeal should not be dismissed be recalled and rescinded. It is further ordered that plaintiff’s motion to dismiss defendant’s answer be maintained only as to that portion which seeks dismissal of plaintiff’s suit, which portion is dismissed. In all other respects the motion to dismiss defendant’s answer is denied.

EX PROPRIO MOTU ORDER RECALLED AND RESCINDED; MOTION TO DISMISS ANSWER MAINTAINED IN PART.

      . LSA-C.C.P. Art. 1841.

      . LSA-C.C.P. Art. 2083.

      . See Succession of Burgess, La.App., 323 So.2d 914; Spears v. Mason, La.App., 303 So.2d 260; Gardes v. Gardes, La.App., 240 So.2d 565; Stull v. Rosenfieid’s House of Fashion, Inc., La.App., 220 So.2d 160. We note there is a difference in the finality of the judgment where the party from whom discovery is sought is not a party litigant, in which event the judgment is a final judgment as to him. See R. J. Gallagher Company v. Lent, Inc., La.App., 361 So.2d 1231; Berard v. American Employers Insurance Company, La.App., 246 So.2d 686.

      . LSA-C.C.P. Art. 2133.


author: LEE, Justice, for the Court:

text:
    Mrs. Bobby LOVORN, Sammy Carter, Joe Goodin, J. D. Eaves and Prentiss Carter v. Ralph HATHORN, Mayor of Louisville, et al.
    No. 49446.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    As Corrected On Denial of Rehearing Jan. 10, 1979.
    Laurel G. Weir, Philadelphia, for appellants.
    Fair & Mayo, James Mayo, Louisville, William A. Allain, Jackson, Frank Deramus, Louisville, for appellees.
    Sara E. Gallaspy, Jackson, amicus curiae brief for Mississippi Municipal Association.
   LEE, Justice, for the Court:

Mrs. Bobby Lovorn, et al., filed their bill of complaint against Ralph Hathorn, Mayor of Louisville, et al., in the Chancery Court of Winston County, seeking a mandatory injunction to enforce the election of a five-member school board for the Louisville Municipal Separate School District. The chancellor entered a decree dismissing the bill and complainants below appeal and assign the following errors in the trial:

(1) The chancellor erred in holding Mississippi Code Annotated Section 37-7 — 203 (1972) to be unconstitutional.

(2) The chancellor erred in holding that the constitutional rights of appellant were not being violated under the one-man one-vote principle.

(3) The chancellor erred in amending his decree after an appeal had been perfected to the Mississippi Supreme Court.

Since July 1, 1960, Louisville Municipal Separate School District has covered all of Winston County and has been the only school district in said county. Twenty-six hundred seventy-five (2,675) pupils outside the Louisville city limits and fourteen hundred eighteen (1,418) pupils inside the city limits attend the schools of said district. The population of Winston County is approximately eighteen thousand four hundred six (18,406) of which number approximately seven thousand (7,000) live within the City of Louisville. Taxes in the school district are assessed and collected by the Louisville City Tax Assessor and Collector, and the school district has issued negotiable bonds for the purpose of funding construction and maintenance of the schools. School taxes collected inside the city amount to two hundred ninety-four thousand nine hundred sixty-four dollars three cents ($294,964.03) and said taxes collected outside the city amount to two hundred fifty-five thousand eight hundred twelve dollars twenty-four cents ($255,812.24). There are fifty-two (52) municipal separate school districts in Mississippi and at least forty-eight (48) such districts have territory located outside the municipality which is embraced within the school district.

Since 1960, the Board of Trustees of Louisville Municipal Separate School District has been composed of five (5) members, three (3) of which are appointed by the governing authorities of the City of Louisville, and two (2) of which are elected by the qualified electors of the school district outside the city. That part of Mississippi Code Annotated Section 37-7-203 (1972) as amended, which applies to this suit provides: “. . . in any county in which a municipal separate school district embraces the entire county in which Highways 14 and 15 intersect, one (1) trustee shall be elected from each supervisors district.” (Emphasis added).

It is not disputed that the underscored phrase applies only to Winston County. Appellants’ suit was brought to enforce election of one (1) trustee from each supervisor's district. They also contend that the method of selecting trustees for said municipal separate school district violates the one-man one-vote rule and that the right of individuals residing outside the Louisville city limits to vote for trustees was being unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The chancellor found the quoted part of the statute to be in violation of Section 90, Mississippi Constitution 1890, and unconstitutional. He also held that the one-man one-vote rule was inapplicable to the present case.

I.

Did the chancellor err in holding Mississippi Code Annotated Section 37-7-203 (1972), as amended, to be unconstitutional?

The basis of the chancellor’s ruling is that the part of said statute referring to Highways 14 and 15 bears no rational relationship to the means of electing trustees in the school district, that it could not apply to any county except Winston County and that it is a local and private law in violation of Section 90(p), Mississippi Constitution 1890, which follows:

“Section 90. The legislature shall not pass local, private or special laws in any of the following enumerated cases, but such matters shall be provided for only by general law, viz:
* * * * * *
(p) Providing for the management or support of any private or common school, incorporating the same or granting such school any privileges; . . . ”

We held in Wilson v. Jones County Board of Supervisors, 342 So.2d 1293 (Miss.1977), where the statute under consideration involved levying an additional two-mill tax in a county having a population in excess of fifty-nine thousand five hundred forty (59,-540) and being traversed by U. S. Highway 11 which intersected U. S. Highway 84 (Jones County), that the classification must bear a rational relationship to the purpose of the section. We said:

“It is the Court’s duty in passing on the constitutionality of a statute to separate the valid from the invalid part, if this can be done, and to permit the valid part to stand unless the different parts of the statute are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all cannot be carried into effect it would not have enacted the residue independently. [Citing cases].
* * * * * *
. We are therefore led to the inescapable conclusion that the legislature would have enacted the valid part of the statute independently of the invalid part because this is precisely what it did. The invalid part of the statute may be separated from the valid part and stricken out leaving a complete and consistent plan whereby counties may levy additional taxes for general county purposes. We therefore hold that the part of section 27-39-304 authorizing counties to levy additional taxes for general county purposes, and the part in the last paragraph prescribing the procedure to be followed in making the levy, are constitutional.” 342 So.2d at 1296, 1297.

An act providing that a county having two judicial districts and being intersected by U. S. Highway 84 and Interstate 59 was held to be unconstitutional in Smith v. Transcontinental Gas Pipeline Corporation, 310 So.2d 281 (Miss.1975). It was emphasized that the classification must be germane to the subject matter of the legislation.

In Vardaman v. McBee, 198 Miss. 251, 21 So.2d 661 (1945), the Court stated:

“Class legislation, also often called local or private legislation, is legislation limited in operation to certain persons or classes of persons, natural or artificial, or to certain districts of the territory of the State, and statutes which make unreasonable or arbitrary classifications or dis-criminations violate provisions of Constitutions prohibiting special laws granting any special or exclusive privileges, immunities, or franchises, or passed for the benefit of individuals inconsistent with the general law of the land. 12 C.J., Sec. 855, p. 1128; 16A C.J.S. Constitutional Law § 489.
It is said in Ruling Case Law, ‘Where a law is broad enough to reach every portion of the state and to embrace within its provision every person or thing distinguished by characteristics sufficiently marked and important to make them clearly a class by themselves, it is not a special or local, but a general, law, even though there may be but one member of the class or one place on which it operates.” 198 Miss. at 260, 21 So.2d at 664.

The statute under consideration in Board of Education v. Educational Finance Commission, 243 Miss. 782, 138 So.2d 912 (1962), provided:

“ ‘In cases involving two (2) counties, each of which is organized on the county-unit basis, where the students residing in one county have been attending and wish to continue attending the school situated in the adjoining county which children from their community have been attending for more than forty (40) years and where the county line lies within one thousand (1,000) yards of the school property, transfers may be granted for a period of time not to exceed five (5) years, subject to the approval of the two (2) respective county boards of education. In case the two (2) boards are unable to agree or in case there is a popular objection to the decision of the respective boards in the matter, appeals shall lie to the state educational finance commission whose decision shall be final.’ ” 243 Miss. at 804, 138 So.2d at 921.

In holding that the statute was not unconstitutional, the Court said:

“The appellant Benton County Board of Education has invited the attention of this Court to the Mississippi Legislative House Journal of 1960 at page 388 in order to prove that the amendment here complained of was introduced by three representatives from Marshall County, Mr. Ash, Mrs. Slayden and Mr. Owen. It is further stated that the Court should take judicial knowledge of the enactment and says: ‘There can be no question, but that this proviso was inserted for the sole and express purpose of taking care of the Potts Camp situation.’ This may well be true, but this Court has no right to assume such facts. The burden is upon one who attacks the constitutionality of a statute to show wherein it conflicts with the Constitution. We find the foregoing rule expressed in 11 Am.Jur., Constitutional Law, Sec. 132, p. 796, as follows: ‘With regard to the duties cast upon the assailant of a legislative enactment, the rule is fixed that a party who alleges the unconstitutionality of a statute normally has the burden of substantiating his claim and must overcome the strong presumption in favor of its validity. It has been said that the party who wishes to pronounce a law unconstitutional takes on himself the burden of proving this conclusion beyond all doubt, and that a party who asserts that the legislature has usurped power or has violated the Constitution must affirmatively and clearly establish his position.’
In the case of State ex rel. Jordan, District Attorney v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, at p. 714, this Court said: ‘Our own Court is committed to the proposition that a statute should be so construed as to render its constitutional, if possible, and a statute will not be declared invalid unless it is clearly apparent that it conflicts with the organic law after resolving all doubts in favor of its validity.’
It was also pointed out in State ex rel. Knox, Attorney General v. Speakes et al., 144 Miss. 125, 109 So. 129, that where the meaning of a provision in a statute is not ascertainable from the act itself, it cannot be enforced by the courts, and certainly courts cannot go outside of the amendment of 1960 in this case, and the record, to find some meaning by which the amendment may be declared unconstitutional.
We are reminded by the language set out in 16 C.J.S. Constitutional Law § 151(1), p. 738, that: ‘The power of the judiciary in determining the constitutionality of a statute is limited to deciding whether it is within the scope of the constitutional powers of the legislative department. The judiciary will interfere with acts of the legislative body only where they are beyond the bounds prescribed by the constitution, and a legislative usurpation of power should be clear, palpable, or oppressive, and the claimed infringement of the constitution must be real to justify interposition. Limitations on the power of the legislature which the people have been satisfied to leave to the judgment, patriotism, and sense of justice of the legislature are not within the control of the courts. It is for the legislature and not for the courts to determine what means shall be employed to accomplish ends within its constitutional powers, * * 243 Miss. at 812-814, 138 So.2d at 925-926.

Absent the provision referring to Highways 14 and 15 intersecting, the statute, which is a general statute, appears to be constitutional. Even though Louisville Municipal Separate School District encompasses all territory of the county, there are statutory procedures whereby any other county in the state could become similarly situated. Without the offensive part of Section 37-7-203, the statute appears to be rational and germane to the subject matter.

We hold that the part of said statute under consideration here which reads “in which Highways 14 and 15 intersect” is unconstitutional, that such offensive language be stricken from the act and that the remaining portion of the statute is constitutional. We further hold that the chancellor erred in finding the entire portion of the statute to be unconstitutional and the decree is reversed and judgment entered here on said question.

II.

Did the chancellor err in holding that the constitutional rights of appellants were not being violated under the one-man one-vote principle?

III.

Did the chancellor err in amending his decree after an appeal had been perfected to the Mississippi Supreme Court?

Appellants contend that their right to vote for trustees is being unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment and that the one-man one-vote rule is applicable to the election of trustees for said school district. They cite Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), and Hadley v. Junior College District of Metropolitan Kansas City, Missouri, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). In Hadley, the Supreme Court stated:

“Appellants argue that since the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. We feel that these powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.
* * * * * *
. Thus in the case now before us, while the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor— these officials are elected by popular vote.
******
. If one person’s vote is given less weight through unequal apportionment, his right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator. While there are differences in the power of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that in cases like this one we are asked by voters to insure that they are given equal treatment, and from their perspective the harm from unequal treatment is the same in any election, regardless of the officials selected.
******
It has also been urged that we distinguish for apportionment purposes between elections for ‘legislative’ officials and those for ‘administrative’ officers. Such a suggestion would leave courts with an equally unmanageable principle since governmental activities ‘cannot easily be classified in the neat categories favored by civics texts,’ Avery, supra, 390 U.S. at 482, 88 S.Ct. at 1119, 20 L.Ed.2d at 52, and it must also be rejected. We therefore hold today that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” 397 U.S. at 53-56, 90 S.Ct. at 794-795, 25 L.Ed.2d at 49-51.

Appellees argue that the one-man one-vote rule does not apply and, among other decisions, cite Sailors v. Board of Education of the County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), wherein the court said that the rule did not apply since the county school board members were elected by delegates from local school boards and that the function of said school board was administrative rather than legislative or governmental. The Court further stated:

“We find no constitutional reason why state or local officers of the nonlegisla-tive character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman
******
. If we assume arguendo that where a State provides for an election of a local official or agency — whether administrative, legislative, or judicial — the requirements of Gray v. Sanders [372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821] and Reynolds v. Sims [377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506] must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of ‘one man, one vote’ has no relevancy.” 387 U.S. at 108, 111, 87 S.Ct. at 1552, 1553, 18 L.Ed.2d at 653, 655.

The selection process here is neither fish nor fowl, three members of the board being appointed in the city and two members being elected outside the city. However, since the decision on Question I decides this case, we do not reach the problem presented by the one-man one-vote rule, and it is not necessary that we pass on the second and third questions here. Suffice it to say, we call attention of the Bench, Bar and Legislature to the question (which we do not decide) presented by the one-man one-vote rule which may affect fifty-two (52) municipal separate school districts in the State of Mississippi.

After consideration of this case by a conference of justices en banc, and for the reasons stated, the decree of the trial court is reversed, judgment is rendered here for appellants, and the case is remanded to the chancery court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and COFER, JJ., concur.

BOWLING, J., took no part.


author: COFER, Justice, for the Court:

text:
    In re EXTENSION OF the BOUNDARIES OF the CITY OF PEARL, Mississippi. John H. NOWLIN, Jr. v. CITY OF PEARL.
    No. 51016.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Rehearing Denied Jan. 10, 1979.

      McLaurin, Nicols & Kelly, John C. McLaurin, Jr., Brandon, for appellant.
    Bacon, Smith & Jernigan, William A. Bacon, Arthur F. Jernigan, Jr., Robert B. Henderson, Jackson, for appellee.
    Before ROBERTSON, LEE and COFER, JJ.
   COFER, Justice, for the Court:

This is an appeal from a decree of the Chancery Court of Rankin County approving, ratifying and confirming an enlargement of appellee, City of Pearl (Pearl), with slight modifications.

Appellant, Nowlin, has assigned five errors:

1. The lower court committed reversible error in finding that it had jurisdiction over the parties and entering its final decree thereon because appellee, petitioner below, failed to prove posting of notices as required by law.

2. The lower court committed reversible error in overruling appellant’s motion to dismiss because the Annexation Ordinance was not recorded in the Ordinance Book either after its passage or before the filing of the Petition as required by law.

3. The chancellor was manifestly wrong in holding that the six year time period for providing services to the areas proposed to be annexed was reasonable.

4. The testimony of one sole governmental official of Pearl, the Mayor, capable of implementing promised improvements in the areas proposed to be annexed was totally insufficient and inadequate to support the chancellor’s finding that the annexation was reasonable and thus the chancellor’s finding was manifestly wrong and the decree entered thereon should be reversed.

5. The chancellor was manifestly wrong, considering all the essential testimony in this case, in holding that annexation by Pearl was reasonable, and the decree should be reversed.

As observed, appellant, in his first two assignments, attacks the jurisdiction of the trial court for alleged insufficiency of process and asserts that objectors’ motion to dismiss the cause for failure of Pearl to record in its ordinance book the prerequisite ordinance of enlargement should have been sustained.

In the first of these assignments, he points to Mississippi Code Annotated, section 21-1-31, (1972), which, on petitions for annexation of territory, requires that “notice thereof shall be given in the same manner and for the same length of time as is provided in Section 21-1-15 with regard to the creation of municipal corporations.”

The latter statute says in part that:

[N]otice shall be given by publication thereof in some newspaper published or having a general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory.

Appellant calls attention to section 13-1— 145, as setting out the method of proof of posting, which provides:

The posting of any notice required by law or the order of any court may be proved by filing a copy of the notice, with an affidavit of posting, in the court in which the proceeding was had in which the notice was required. Such affidavit shall be competent evidence in all courts, and shall be prima facie evidence of what it states.

As a part of its notice to interested parties, the record shows that five copies of the notice were posted, two in Pearl and one in each of the three areas sought to be annexed. These are, by the return thereon, shown to have been posted at five public places, the particular places shown in the returns thereon. A deputy sheriff posted the notices as reflected in the returns.

It is contended that either the officer who posted the notices should have made an affidavit of posting or he should have been produced to show that he thus posted them. In support of his position on the posting and recording of the precedent ordinance, appellant cites Myrick v. Incorporation of Stringer, 336 So.2d 209 (Miss.1976).

In the Myriek decision, it is said:

The privilege of incorporation of a municipality can be granted only by the legislature and the procedure must be strictly complied with which grants to the chancery court the duty to determine whether public convenience and necessity will be served by the incorporation,

and

The notice required by this statute (21-1 — 15) is in lieu of personal service and it is well settled that a statute providing for notice in lieu of personal service must be strictly complied with and where the statute required the posting of notices, the notices must be so posted and the record must show that they were posted as required by the statute. Langstaff v. Town of Durant, 122 Miss. 471, 84 So. 459 (1920).

(336 So.2d at 210).

In that case the record failed to show the posting of notice. We further said:

No affidavit was filed as provided for in this section (13-1 — 145) and no attempt was otherwise made to prove that the notices were posted as required by statute. Consequently, the finding of the chancellor that proper notice was given as required by statute is not supported by the proof. (Emphasis added).

(336 So.2d at 210-211).

While strict compliance is necessary, section 13-1-145 says that the posting of the notices may be proved by an affidavit of the posting. This method of proving the notice does not preclude another method of proving such posting. Still recognizing that strict compliance is necessary, the posting of the notices by a deputy sheriff of Rankin County with returns thereon, reading with necessary variances to reflect where posted, the returns on all five notices are substantially as follows:

State of Mississippi
Rankin County
Cause No. 15,717
Chancery Court, Rankin County
I have this day executed the within writ by personally posting a true and correct copy of the above and foregoing summons in a public place in the area proposed to be annexed, as follows, to-wit:
(naming place)
This the 4th day of October, 1977.
J. B. Torrence, Sheriff
By: Clifford Boggan, D. S.

In the Langstaff case, supra, it was said:

Where the statute requires a notice to be posted at a particular place, the notice must be so posted and the record should

show that it was posted in accordance with the statute. Where a pleading states generally that notice was given as required by law, and the notice and the officer’s certificate thereto shows specifically by notation thereon how it was done, such notice and notation will control the general averment.

(122 Miss. at 492, 84 So. at 460).

72 CJ.S. Process § 90, p. 1128 (1951), says in part:

. The return is an official act, and constitutes the official oath of the officer as to the facts stated in the return. . . . (Emphasis added).

The solemn returns of the officer on these notices are sufficient to meet the notice requirement of posting contained in the statute.

When the attack was made on process, Pearl, earlier than the time required therefor, caused posting of three notices in each of the three areas sought to be annexed. While we view this precautionary act as a commendable one, we hold that the original posting was sufficient and the sheriff’s return on that posting met the requirement of the statute.

Appellant further contends that the court was without jurisdiction because the proof of newspaper publication of the notice and the copies of the posted notices with the sheriff’s return as to his posting of them, were not introduced in evidence.

Griffith’s Mississippi Chancery Practice, section 572 (2d ed. 1950), “Pleadings judicially noticed,” says:

So it is then that the pleadings control the scope of the testimony, supply by their admissions the place of proof as to all facts so admitted, and that some answers are actually part of the evidence. The presentation of oral or written evidence on the hearing through the means of witnesses or of documents is therefore only an adjunct, albeit a substantial adjunct, of the case already made. The pleadings, summons, all motions and all orders theretofore made in the case are parts of the record, prove themselves and it is not necessary to formally introduce them at the hearing. It is not necessary to introduce in evidence a part of the record in the instant case, because the court takes judicial notice of all judicial parts of the record and it is therefore already in evidence. . . . (Emphasis supplied).

Walker v. Walker, 7 Miss. 500, 6 How. 510 (1842), says, in part:

. our courts acquire jurisdiction by service of the process merely without the appearance of the defendant, and as it must appear from the record that the court had jurisdiction, the process constitutes a part of the record. (Emphasis added). (7 Miss. at 510).

It is our view that the proof of publication of the notice and the copies of the posted notices with the sheriff’s return thereon, when filed, became a part of the record and were thereby, before the court, and it was not necessary that they be made a part of the evidence in the case.

It is urged in the second assignment of error that the cause should have been dismissed because of Pearl’s failure to cause the annexation ordinance to be recorded in the city’s ordinance book.

Mississippi Code Annotated, section 21-13-13 (1972), is relied upon as authority for this assignment. That statute provides in pertinent part that the clerk shall enter at length in the ordinance book every ordinance enacted immediately after its passage, and that all ordinances thereafter passed which are not entered in the ordinance book shall be void and of no effect. “The ordinances which are to be recorded in such ordinance book are those which are in their nature laws of the municipality, and are not mere resolutions, orders or decrees of a temporary nature.”

Due adoption of the ordinance and its appearance in the minutes of the Mayor and Board of Aldermen are facts not at issue but are stipulated by the parties.

That this question would ultimately be before us was probably presaged by the opinion in City of Biloxi v. Cawley, 278 So.2d 389 (Miss.1973), wherein assertedly there appears a dictum, in which we held:

Obviously an annexation ordinance becomes effective when, and not before, it is approved by a decree of the chancery court. Neither recording nor signing of such an ordinance in the ordinance book will render it effective without such approval. It is to be doubted that an annexation ordinance should be recorded in the ordinance book until after it shall have been approved by a decree of the chancery court in statutory proceedings. In any event, an annexation ordinance is without effect until so approved. (278 So.2d at 393).

We now hold that the annexation ordinance, ineffective until it is approved by the court, was not required to be recorded in the ordinance book of Pearl until final approval of it by the court.

These two assignments of error at the threshold of the case and having to do with only two of multiple pretrial motions filed in the case, having now been disposed of, the remaining three asserted errors are reached on the merits.

The case was strenuously tried, and there are few facets of the proof wherein the parties agreed in the trial. The record consists of thirteen volumes, 2,158 pages, and the abstract of it is 285 pages in length. Examination of the abstract and of the record has been made.

Pearl was incorporated June 25, 1973, [In Re Incorporation of the City of Pearl, 279 So.2d 590 (Miss.1973)], and encompassed 10.5 square miles. On September 20, 1977, the municipality adopted the present ordinance for annexation of territory outside of, but contiguous to, its boundaries and filed petition in this cause praying approval of the annexation, which territory, if approved by the court, would more than double its size. There are three areas, referred to as area one, area two, and area three, sought to be annexed.

Area one is the smallest of the three, and is bounded on its easterly and south sides by Pearl and on its north and westerly sides by the municipality of Flowood. It is, therefore, an enclave completely surrounded by Pearl and Flowood.

Area two lies southerly of, and is bounded by Pearl and Richland and unincorporated territory.

Area three has a common boundary with Pearl, and is also bounded by the City of Jackson’s Allen C. Thompson Airport and by territory then unincorporated.

Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960), contains criteria to be met in the extension of municipal boundaries and these have, since that decision, been recognized as factors governing the reasonableness of the annexation and the correctness of the governing authority’s finding that such annexation is publicly convenient and necessary. These criteria are:

1. The city’s need for expansion;

2. Whether the territory sought to be annexed is reasonably within the path of such expansion;

3. The potential health hazard from sewage and waste disposal, and

4. The city’s financial ability to make the improvements and furnish municipal services to the area if annexed.

Pearl, in its ordinance, promised prompt police, fire and pest protection, and six other related needs. Where applicable, necessary, and economically feasible, it further promised, to be completed within a reasonable time not exceeding six years, unless delayed by war or military preparedness restrictions, the following improvements:

A. Grading, draining, and improving existing streets;
B. Installing water lines and fire hydrants;
C. Installing sewer lines; and
D. Installing street lighting.

The chancellor, in a well-reasoned opinion, reflecting full understanding of the long record made over a hearing extending almost two weeks, found and decreed in favor of Pearl on all four of the Dodd criteria, above, and that the annexation, with small exceptions, as prayed, is reasonable and to the public convenience and necessity. We will not detail the testimony for and contrary to his finding, but are of the opinion that his determination is supported by substantial evidence, and is not contrary to the overwhelming weight of the evidence, and we agree with his decision. As heretofore stated, there is conflict throughout the record, and we could not say a contrary decision on his part would be unsupported by substantial evidence.

Pearl, still a fledgling municipality, was carved out of territory unregulated by responsible authority wherein the property owners, with no restrictions thereon, respectively did what was right in their own eyes. The result was a hodge-podge of buildings, mobile homes, roads, and sewer conveniences, a situation not wholly remedied, which will require its attention for a number of years yet. As might be expected under such circumstances, scores of objectors assert that Pearl should attend to the needs within its boundaries before undertaking fulfillment of promises to the area sought to be annexed, a “physician, heal thyself” sort of position and argument. Its very effort here has wrapped up in it a desire on its part that the areas here involved, being in the path of its expansion, will not grow up and become densely populated with a “crazy quilt” situation of development which will require uprooting and a new start in the matter of water, streets, sewer, and other necessities that people have. Hence, Pearl’s desire is to regulate these areas now before such conditions are created.

The chancellor’s decision and decree are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.