author: DENNIS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Leroy MADISON (two cases).
    Nos. 58863 and 58864.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Eddie N. Pullaro, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Leroy Madison, was charged by bill of information with the attempted first degree murder of Philip Billiot, a Ter-rebonne Parish deputy sheriff, La.R.S. 14:30 and 14:27, and found guilty as charged by a unanimous twelve member jury. He was subsequently sentenced as a multiple offender to serve forty years at hard labor. On appeal, he urges twenty-one assignments of error for reversal of his conviction and sentence. We affirm.

ASSIGNMENT OF ERROR NO. 1

Defense counsel, appointed by the court to represent the indigent defendant, asserted in a pretrial motion that he was unable to prepare a proper defense without the assistance of a private investigator in locating a crucial witness, and requested the court to provide $500 for the services of a qualified investigator. After a contradictory hearing, the judge denied the motion because he knew of no authority for the requested expenditure and felt the Indigent Defender System could not bear the expense of furnishing investigators upon request. This ruling is assigned as error.

The right to a private investigator may in many cases be an adjunct to the right to counsel: furnishing counsel to the indigent defendant is not enough if counsel cannot secure information on which to construct a defense. See, United States v. Johnson, 238 F.2d 565, 572 (2d Cir. 1956) (dissenting opinion of Frank, J.); Note, “The Indigent’s Right to an Adequate Defense: Expert and Investigational Assistance in Criminal Proceedings,” 55 Cornell L.Rev. 632 (1970); Note, “Right to Aid in Addition to Counsel for Indigent Criminal Defendants,” 47 Minn.L.Rev. 1054 (1963); ABA Standards for Criminal Justice Relating to Providing Defense Services (1967), § 1.5 and commentary. It is a fundamental principle that the kind of trial a man gets cannot be made to depend on the amount of money he has. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Therefore when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him, and if the indigent defender system cannot defray the expense, the State ought to supply the funds.

In the instant case, however, defendant did not make a sufficient showing of need to justify the procurement of an investigator. Defendant testified at the hearing that the investigator was needed to locate a man who had been at the scene of the crime shortly before its occurrence. He stated that he had met the individual for the first time that night and knew his first name, but had not learned his last name or where he resided. The only clues he could offer to the man’s location were a general physical description of him and the name of a place to which he had asked defendant to take him. More importantly, because defense counsel was unwilling to disclose to the State any of the details of his defense, the court was given no indication of the man’s possible contribution to the case beyond counsel’s bald assertion that he was “vital to our defense.”

While we appreciate counsel’s reluctance to reveal his defense, we cannot overlook his failure to establish any genuine need for the location of the missing witness. The dilemma might have been avoided in a private hearing before the trial judge instead of a contradictory hearing with the State as requested by defense counsel. Having chosen to proceed in this fashion and withhold a full explanation of his request, he cannot complain of the court’s refusal to order a search for a possibly useless and probably untraceable witness.

This assignment is without merit.

Assignment of error number 2 was not briefed or argued and is considered abandoned.

ASSIGNMENTS OF ERROR NOS. 3, 11, 12 & 13

By these assignments, the defense argues that the in-court identification of defendant by the victim of the crime, Deputy Billiot, resulted not from his independent recollection of his assailant but from his exposure to defendant at the preliminary hearing, where defendant was the only black man in the courtroom. Counsel further claims that the in-court identification by Deputies Billi-ot, Bergeron and Detiveaux were the product of an unduly suggestive procedure, in that defendant was conspicuously displayed at the defense table between his two white attorneys.

In State v. Boettcher, 338 So.2d 1356 (La.1976), we agreed that identification in court at trial or at a preliminary hearing, where the accused sits at the defense table and may be the only black in the courtroom, may be highly suggestive. However, when an in-court identification has a source independent of the tainted procedure, it does not violate the accused’s due process rights, State v. Price, 325 So.2d 780 (La.1975); State v. Bland, 310 So.2d 622 (La.1975); State v. Newman, 283 So.2d 756 (La.1973). In State v. Newman, supra, we enumerated three factors to be considered in determining whether the identification has an independent source: 1) the prior acquaintance of the witness with the accused; 2) the length of time the witness observed the perpetrator before, during and after commission of the offense; and 3) the circumstances under which the observation was made, including illumination at the scene, the physical capacities of the witness, and the witness’ emotional state at the time of the observation.

At approximately 2:00 a. m. on the morning of February 8, 1975, Deputy Philip Billiot, while on routine patrol in Chauvin, Louisiana, noticed a Mercury automobile parked in front of a local store, and on closer inspection, saw that the glass door of the building was broken. He parked his vehicle behind the other car and got out to investigate. As he walked toward one end of the building, a black male jumped out from behind the Mercury and fired three shots, striking the officer twice. The scene was illuminated by lights within the store and two street lamps. Positioning themselves on opposite sides of the Mercury, the two men exchanged several rounds of gunfire, but when Deputy Billiot maneuvered himself into his patrol car to radio for assistance, his assailant got into the Mercury and sped away. There followed a high speed chase, during which the deputy never lost sight of the other car. After giving chase for fourteen miles, Billiot’s attacker finally turned off the road into a pipeyard where he stopped and abandoned his car. Billiot apprehended him and held him at gunpoint for several minutes until other police units arrived.

Deputy Bergeron was the first back-up officer to arrive at the scene. He held a shotgun on the prisoner, who was spotlighted by the headlights of Billiot’s vehicle, until Lieutenant Detiveaux arrived a minute later and handcuffed him.

At trial, Billiot, Bergeron and Detiveaux positively identified defendant as the man taken into custody. The above-related facts demonstrate that at the time of the incident all three officers had ample opportunity to observe and ample reason to remember defendant’s features. Moreover, we are impressed by defendant’s failure to allege that the purportedly suggestive in-court identification procedure led to a mistaken identification of him. Because Deputy Billiot had defendant in his sight from the time of the shooting until defendant was taken into police custody, where he remained until trial, we do not believe that the identity of Billiot’s attacker was a serious issue in this case.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 4

This assignment relates to the trial court’s denial of two motions for change of venue, filed on August 27 and December 30, 1975. Defendant alleged in each motion that public prejudice against him, arising out of articles published in a local newspaper, would make it impossible for him to receive a fair trial in Terrebonne Parish.

At the hearing on the first motion on September 5, 1975, defendant introduced four articles which had appeared in the Houma Daily Courier and related to an armed robbery allegedly perpetrated by defendant and James LaGarde in June of 1973. Three of the four articles were the basis of LaGarde’s motion for a change of venue in a theft prosecution in 1974. In reviewing the trial court’s denial of the motion in that case, we found the court’s ruling proper, since “the voir dire examination clearly showed that the jurors were free of any prejudice that would prevent defendant from receiving a fair and impartial trial.” State v. LaGarde, 308 So.2d 748, 749 (La.1975).

Another hearing was held on January 13, 1976, pursuant to defendant’s second motion for a change of venue. Three more recent articles from the Houma Daily Courier were introduced. The first, published on February 9, 1975, the day after the crime, was an objective, non-inflammatory account of the incident; the second, dated November 14, 1975, was in praise of Deputy Billiot’s heroic apprehension of defendant, whose name was not mentioned; and the last, a lengthy article appearing on January 7, 1976, reviewed “Parish Crime in 1975,” devoted only two short paragraphs to the instant offense, and likewise did not mention defendant’s name.

Additionally, defendant presented the results of an admittedly amateurish survey conducted in the parish, which indicated that ten of the twenty-four persons interviewed ' had heard of defendant’s name. Defendant does not emphasize, but we note, that twenty-three of those questioned did not remember hearing the names of those involved in the instant offense, and twenty did not recall the 1973 armed robbery in which defendant had been implicated.

In a motion for a change of venue, the applicant has the burden of proving that a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. La.C.Cr.P. art. 622; State v. Rudolph, 332 So.2d 806 (La.1976); State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Bell, 315 So.2d 307 (La.1975); State v. Richmond, 284 So.2d 317 (La.1973). Article 622 of the Code of Criminal Procedure requires more than proof of publicity or knowledge by the public of the facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Rudolph, supra, and cases cited therein.

We find that defendant failed to sustain his burden of proof in the instant case. The publicity he protests against was sparse and objective, and the last newspaper account indicating defendant’s name was published almost a year prior to the trial. Further, only one prospective juror stated during the voir dire examination that he had formed a fixed opinion of the case based upon the news media reports (he was excused for cause), and there is nothing in the record to suggest that the other veniremen had been influenced by the publicity. See State v. Rudolph, supra.

The granting or denial of a motion for change of venue rests within the sound discretion of the trial judge, State v. Rudolph, supra, and cases cited therein, and under the evidence presented in support of defendant’s motion, we find no abuse of that discretion in the court’s refusal to grant a change of venue.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the court erroneously overruled his challenge for cause of a prospective juror, Ms. Melinda Naquin, whose brother-in-law had served for over a year as a Terrebonne Parish deputy sheriff. He had served on a full time basis, however, for only two months prior to the trial. The challenge for cause was based upon the alleged partiality of the juror, La.C.Cr.P. art. 797(2), who, it was claimed, would identify the victim of the offense, also a Terrebonne Parish deputy sheriff, with her brother-in-law. Inasmuch as defendant exhausted all of his peremptory challenges before the jury panel was completed, the objection is properly before us. La.C.Cr.P. art. 800; State v. Calloway, 343 So.2d 694 (La.1976).

We have previously indicated that the service on a criminal jury of one associated with law enforcement duties must be scrutinized closely and may ordinarily justify a defense challenge for cause. State v. Ballard, 337 So.2d 481 (La.1976). This is particularly so where the victim of the crime is a police officer. However, a relationship to one who might be prejudiced does not disqualify a person from serving on the jury unless that relationship would influence the juror in arriving at a verdict. State v. Calloway, supra. In Calloway we found that the trial court had properly refused to excuse for cause a venireman whose nephew was a police officer, and in State v. Nix, 327 So.2d 301, 326 (La.1975), we upheld the denial of a defense challenge for cause of a prospective juror whose brother-in-law was a murder victim, where both veniremen stated they could give the accused a fair trial.

Ms. Naquin unequivocally denied that she would be influenced by the fact that her brother-in-law was a police officer and indicated that she could render a fair and impartial verdict based on the evidence in the case. The trial court has broad discretion in passing upon the qualifications of prospective jurors, State v. Calloway, supra, and we find no abuse of that discretion here.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant claims that the court erred in failing to excuse the entire second panel of veniremen after it had been exposed to the allegedly prejudicial remarks of two members of the panel.

The remarks complained of were the statements by one prospective juror that he would give more credence to the testimony of law enforcement officers and by another that he had formed a fixed opinion in the case, which was not disclosed; both prospective jurors were excused for cause. Defendant did not question the remaining veniremen as to whether they had been influenced by the statements, did not suggest to the court that the panel be excused, and accepted two of its members without challenge.

Because of defendant’s failure to make known to the trial court the action he desired it to take, this assignment is not properly presented for our review. La.C. Cr.P. arts. 841 and 920.

ASSIGNMENT OF ERROR NO. 7

Defendant asserts that the trial judge erred in failing to excuse for cause three prospective jurors, one of whom knew the victim’s wife’s family, and two of whom were acquainted with a State witness. All three jurors indicated that their associations with the witnesses would not influence their ability to render a fair and impartial verdict, and because defendant did not challenge any of them for cause, this assignment is not reviewable by this Court, La.C.Cr.P. arts. 841, 920.

ASSIGNMENTS OF ERROR NOS. 8 & 9

In response to a question directed to the fourth panel of veniremen on voir dire examination, two • prospective jurors stated that their respect for law enforcement officers would cause them to be biased against defendant, charged with attempted murder of a sheriff’s deputy. Both jurors were excused for cause, but defendant further requested that the remainder of the panel be excused and that the court declare a mistrial.

Although the statements complained of were admissions of bias against defendant, they were not in and of themselves prejudicial. The question which prompted the statements was directed to the panel as a whole, and none of the other prospective jurors indicated that they shared the views of the two who were excused. We do not believe that the remaining jurors were so malleable as to be influenced by these noninflammatory statements of opinion. The candid responses of two members of the panel might, to defendant’s advantage, have encouraged others of the same mind to disclose their preconceived biases, but were not likely to have fomented the same impressions in them.

The trial judge declined to take any action on account of the two jurors’ remarks beyond excusing those making them; he reasoned that any adverse effect upon the other prospective jurors need not be the subject of speculation, but could be discovered by further voir dire examination.

We find his decision to have been proper. There was no showing of partiality on the part of the other veniremen to justify their excusal for cause under La.C.Cr.P. art. 797.

When a remark made by a prospective juror is of such a nature that it might create prejudice against the accused in the minds of the other jurors, the court is required, upon defendant’s request, to admonish the jury to disregard the statement. The drastic remedy of mistrial is authorized only if the court is satisfied that an admonition is not sufficient to assure the defendant a fair trial. La.C.Cr.P. art. 771; See State v. Redfud, 325 So.2d 595 (La.1976); State v. Wilkerson, 326 So.2d 353 (La.1976). For the reasons stated above, we do not consider the remarks at issue to have been prejudicial; they did not warrant either an admonition or the granting of a mistrial.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 10

In recounting the events leading up to the shooting, Deputy Billiot, pursuant to the prosecutor’s questioning, explained that as he was driving through Chauvin, Louisiana, broken glass in the door of a local store caught his attention and caused him to stop for further investigation. Defendant objected to this testimony and unsuccessfully moved for a mistrial on the ground that the reference to broken glass was inadmissible evidence of “another crime.”

Louisiana Code of Criminal Procedure article 770 provides:.

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, refers directly or indirectly to:
“(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
U * * * ft

The jurisprudence interpreting this article has held that an impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the State "tad would also mandate a mistrial. State v. Overton, 337 So.2d 1201 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975).

However, it is not merely reference to “another crime” which invokes the protection of the article, as defendant seems to suggest; the reference must be to another crime “committed or alleged to have been committed by the defendant as to which evidence is not admissible.”

The trial court properly observed that the reference to the store’s broken entrance, although perhaps indicative of a burglary, did not suggest that defendant was the perpetrator of that crime. Moreover, had the State introduced evidence to show that Deputy Billiot had surprised defendant in the perpetration of a burglary, which it did not, such evidence would have been admissible as part of the res gestae. La.R.S. 15:447-448; State v. Morris, 340 So.2d 195 (La.1976), and cases cited therein.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends that the court erred in allowing the State to introduce five photographs of his automobile into evidence without requiring that a proper foundation be laid for their introduction.

Detective Daniel DeRoche testified that he had taken the pictures at the pipeyard where defendant abandoned his car within an hour of the arrest. Each photograph bore Detective DeRoche’s. signature on the reverse side and was marked for identification with the case number and the date of the incident. DeRoche stated that the photographs were faithful and accurate depictions of the scenes reproduced, but because he admitted that he would be unable to swear to their authenticity without the identifying stamp, defendant claims they were inadmissible.

The law does not require as a prerequisite to the admissibility of photographs that the photographer have an independent recollection of the scenes depicted in them. The pictures themselves serve as an aid to the memory and there is no reason why the photographer may not rely upon a label as a further aid to their identification. Detective DeRoehe’s positive visual identification of the photographs as being those he had taken on the night of the crime, and had developed and printed himself established a sufficient foundation for their admission. See, State v. Demery, 324 So.2d 418 (La.1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Defendant further argues that the photographs were not competent evidence since Detective DeRoche had received no specialized training in photography. The officer testified that he had received on the job training by other police officers, and the pictures themselves attest to his ability to have taken them.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 15 & 16

When the State offered into evidence the bloodstained shirt and teeshirt worn by Deputy Billiot on the night of the shooting, defendant objected on the ground that the evidence was inflammatory, and when the court admitted the items over his objection, defendant moved for a mistrial which was denied.

The test of admissibility is whether the probative value of the evidence is outweighed by its prejudicial effect. State v. Morris, 340 So.2d 195 (La.1976); State v. Groves, 311 So.2d 230 (La.1975). The clothing complained of had been torn by the bullet which wounded the deputy in the chest, and was stained with a small amount of dried blood. It was a silent chronicle of the attempt upon Deputy Billi-ot’s life, which the State had the burden of proving, and was relevant to corroborate his testimony that he had been shot at and wounded by defendant. The small patches of dried blood on the garments were not of such a nature as to overwhelm reason and incite the jury to associate defendant with the crime without Sufficient evidence. See 4 Wigmore, Evidence § 157 (Chadbourn rev. 1972). We find that the trial court properly admitted the items in evidence and denied the motion for a mistrial.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 17

By this assignment, defendant urges that there was not sufficient evidence to support the jury’s verdict of guilty. This argument was never addressed to thp trial court and hence is not reviewable on appeal. La.C.Cr.P. arts. 841 and 920.

Furthermore, because our review is limited to questions of law, La. Const.1974, Art. V, § 5(C), we may not consider the sufficiency of the evidence, but only whether there was some evidence of each essential element of the crime charged. State v. Woods, 327 So.2d 405 (La.1976). The evidence summarized in connection with our discussion of assignments of error numbers 3, 11, 12 and 13 clearly constitutes some evidence to support the verdict.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 18

Defendant argues that the trial court erred in qualifying Detective Daniel De-Roche as an expert in fingerprint identification.

Detective DeRoche graduated from Nic-holls State University with a bachelor of science degree. He subsequently completed two forty-hour courses in fingerprint classification at LSU and two forty-hour fingerprint courses at Federal Bureau of Investigation training schools. Additionally, he took a six-month correspondence course from the Institute of Applied Sciences, which was primarily devoted to the study of fingerprints. He had worked with fingerprints as a crime lab technician in the Ter-rebonne Parish Sheriff’s office for four years.

Determination of the competency of an expert witness is a question of fact and the trial court’s ruling should not be disturbed in the absence of manifest error. La.R.S. 15:466; State v. Rogers, 324 So.2d 358 (La.1975). We find that the trial court did not abuse its discretion in ruling that Detective DeRoche’s past experience and training established his competency to testify on the subject of fingerprint identification. See State v. Overton, 337 So.2d 1201 (La.1976).

ASSIGNMENT OF ERROR NO. 19

To establish that defendant was a multiple offender, the State introduced a certified Xeroxed copy of defendant’s fingerprint card, on file at the Louisiana State Penitentiary in connection with the records of a prior conviction. Defendant objected that a Xeroxed copy of the prints was inadequate and that only the original document would suffice.

La.R.S. 15:529.1(F) provides:

“The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”

The statute provides for the introduction of fingerprints “as they appear” in the prison records. Detective DeRoche, who conducted the in-court analysis of the fingerprints, testified that a Xeroxed copy would reflect every imprint on the original card and that his analysis would not be impaired by the fact that he was working from a copy. The trial court properly overruled defendant’s objection.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 20, 21 & 22

By these assignments, defendant challenges the constitutionality of Louisiana’s Habitual Offender Law, La.R.S. 15:529.1.

Initially, he argues that the statute imposes cruel and unusual punishment, an argument we rejected in State v. Williams, 326 So.2d 815 (La.1976).

He further claims that the habitual offender law is unconstitutional because it is applied discriminately against minority groups. In State v. Overton, 337 So.2d 1201, 1207 (La.1976), we held:

“In the absence of a showing that a policy of selective enforcement is deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, there is no constitutional infringement.”

No such showing has been made in this case.

These assignments are without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

MARCUS, J., concurs.

SANDERS, C. J., concurs in the decree.

SUMMERS, J., concurs in result only.

TATE, J., dissents and assigns reasons.

TATE, Justice,

dissenting.

I respectfully dissent.

With respect to Assignment No. 5, in my opinion, the trial judge erroneously refused to excuse Melinda Naquin when challenged for cause by the defendant.

At the time of trial, the prospective jur- or’s brother-in-law was sheriff’s deputy, serving on the same police force as the victim. Defendant based his challenge for cause on the partiality of the juror, La.C. Cr.P. art. 797(2), based upon the implicit identification by the juror of the victim’s interest with that of her brother-in-law.

In holding that the .trial court did not abuse its discretion in overruling the challenge, the majority relies upon State v. Calloway, 343 So.2d 694 (La.1976), and State v. Ballard, 337 So.2d 481 (La.1976). However, those cases are easily distinguishable.

In Calloway, we found that the trial court had properly refused to excuse a venireman whose nephew was a police officer. We stated that relationship to one who might be prejudiced does not disqualify a person from serving on a jury unless that relationship would influence the prospective juror in reaching a verdict.

In Ballard, we found no abuse of discretion where the trial court refused to excuse an auxiliary policeman for cause. We there stated that jury service of one associated with law enforcement duties must be scrutinized closely; but, after examining that prospective juror’s tenuous connection with law enforcement duties, we found no reversible error.

However, the defendant in neither Callo-way nor Ballard was on trial for a crime committed against a police officer. In the instant case, to the contrary, the accused was charged with the attempted murder of a police officer during the performance of his duties. Because of the nature of the crime charged, it is not reasonable to conclude that the prospective juror’s impartiality would not be affected by her close family connection with one serving on the same police force as the victim.

For the reasons hereinabove expressed, I respectfully dissent from the majority’s conclusion that refusing to excuse the prospective juror did not constitute reversible error.

      The fourth article, presented in this case, but not in LaGarde’s was similar in content to the other three.


source: Caselaw Access Project

author: CALOGERO, J.,

license: Public Domain

text:
    James A. MOREAU v. Richard TONRY et al.
    No. 59655.
    Supreme Court of Louisiana.
    April 12, 1977.
   In re: Certification from the Court of Appeal, 4th Circuit on appeal from the 25th Judicial District Court, Parish of St. Bernard.

Treating this appeal from a non-appeala-ble ruling sustaining an exception as an application for writs, Rule 1, Section 11, the application is denied. Relators have an adequate remedy by appeal after a judgment on the merits.

CALOGERO, J.,

concurs in the denial.

DENNIS, J., is of the opinion that because of the serious questions of law which have been certified to us by the Court of Appeal in accordance with La.Const. of 1974 Art. 5, § 11, we should require that the whole record be sent up for its consideration, and thereupon in a full opinion decide the whole matter in controversy, including the following questions:

(a) Does the district court have jurisdiction in this matter to declare James A. Moreau the duly elected nominee of the Democratic party for the office of member of the United States House of Representatives from the First Congressional District of the State of Louisiana?
(b) Does the district court have jurisdiction in this matter to declare null and void the general election for this office held on November 2, 1976 and to order a new general election?
(c) If the district court lacks jurisdiction in either respect, should the case be dismissed for lack of a justiciable controversy?


text:
    METAIRIE BANK & TRUST COMPANY v. WENDRYHOSKI DeBLANC AND ASSOCIATES et al.
    No. 58995.
    Supreme Court of Louisiana.
    April 13, 1977.
    For opinion below, see La., 341 So.2d 414.
   JOINT MOTION TO DISMISS

On motion of Metairie Bank & Trust Company, plaintiff-appellant in the above entitled and numbered cause, through its undersigned counsel of record herein, and on suggesting to the Court that mover desires to dismiss the said cause;

IT IS ORDERED BY THE COURT, that the above entitled and numbered cause be and the same is hereby dismissed.

MOLLERE, FLANAGAN & ARCEN-EAUX

BY: (si James T. Flanagan

James T. Flanagan

2341 Metairie Road

Metairie, LA 70004

837-4950

Counsel for Applicant-Plaintiff

MONTGOMERY, BARNETT, BROWN & READ

BY: (si Patrick J. Browne

Patrick J. Browne

806 First NBC Building

New Orleans, LA 70112

561-8989

Counsel for Respondent


author: MARCUS, Justice.

text:
    Dorothy CONELLA et al. v. Bobby JOHNSON et al.
    No. 58909.
    Supreme Court of Louisiana.
    April 20, 1977.

      J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for defendants-relators.
    B. Dexter Ryland, Alexandria, for plaintiffs-respondents.
   MARCUS, Justice.

Upon application of Bobby Johnson for relief under our supervisory jurisdiction, we granted a writ of certiorari to review the correctness of an order of the judge of the Ninth Judicial District Court quashing a subpoena and subpoena duces tecum addressed to an assistant district attorney and a deputy sheriff of Rapides Parish. The subpoenas were issued in connection with a notice of intention to depose these persons relative to a pending civil action with the following factual background.

On October 8, 1975, Richard E. Lee, oity court judge for the City of Pineville, issued a warrant for the arrest of Bobby Johnson. The warrant recites that:

. [Cjomplaint has been made before me, the undersigned authority on the oath of Dorothy Conella that one Bobby Johnson on or about the 7th day of July, 1975, did unlawfully violate LSA R.S. 14:67 in that he did commit the theft of one 24' x 60' frame building valued at $6,000.00.

Several months later, Dorothy Conella filed the present civil suit alleging that Bobby Johnson and another individual, Julius J. Walker, Sr., were indebted to her in the sum of $2,000, together with legal interest and costs. Conella’s petition alleged that Johnson had removed a house from her property and located it on property of Walker contrary to an agreement with Johnson that the structure would be moved only after Johnson purchased the house and paid the purchase price of $2,000 in full. The petition was signed by Richard E. Lee as attorney for plaintiff. In his answer, Johnson generally denied the allegations of plaintiff’s petition and further answered by asserting that he had purchased the building for $2,000 and had made a down payment of $200 on the purchase price prior to its removal from Conella’s property. Assuming the position of plaintiff in reconvention, Johnson alleged that, because of financial reverses which occurred subsequent to the purchase of the aforesaid property, he was unable to pay the balance of $1,800 due to plaintiff. As a result, Conella caused a criminal charge of theft to be filed against him and a warrant for his arrest to be issued in an attempt to coerce him into paying the balance due. Johnson further alleged that the criminal charge had been nolle prossed by the district attorney and that said complaint had been intentionally and maliciously filed by Conella without probable cause in an effort to coerce payment of a civil debt. He sought damages in the total sum of $17,000, together with legal interest and cost.

Pursuant to his reconventional demand for malicious institution of prosecution, Johnson noticed the attorneys for the parties to the litigation of his intention to depose assistant district attorney Jack Pierce Brook and deputy sheriff Anthony Van Dyke. A subpoena and subpoena duc-es tecum were issued ordering the appearance of these persons and production of any and all documents in their possession relating to the criminal charge filed against Johnson. The subpoenas were quashed by ex parte order of the district judge on motion of the assistant district attorney and deputy sheriff, which motion represented that the information and records sought by Johnson were exempt from public disclosure in that they pertained to criminal litigation which could reasonably be anticipated and which had not been finally settled. Shortly thereafter, counsel for Johnson again noticed his intent to depose the same persons and secured the issuance of another subpoena and subpoena duces tecum. In view of the objections earlier raised by deponents, the deposition was presided over by Judge Guy E. Humphries. At that time, the district attorney, functioning as counsel for the assistant district attorney and deputy sheriff, renewed the claim that any records and information pertaining to the criminal complaint against Johnson were privileged.

La.R.S. 44:3 provides in pertinent part that the right of any elector or taxpayer, or any agent of either, to examine, copy, photograph and take memoranda of any and all public records shall not be construed

. to require disclosure of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, marshals, investigators, correctional agencies, investigative agencies, or intelligence agencies of the state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled;
(C) Whenever the same is necessary, judicial determination pertaining to compliance with this section or with constitutional law shall be made after a contradictory hearing as provided by law.

(Emphasis added.)

The issue presented for our consideration herein is whether the ruling of the trial judge upholding deponents’ claim of privilege was made in conformity with La.R.S. 44:3(C) which provides that the question of privilege shall be judicially determined after a contradictory hearing.

The record reveals that the district attorney and assistant district attorney testified that, although the charge filed pursuant to Conella’s initial complaint against Johnson had been nolle prossed, a second criminal complaint arising out of the same transaction and filed by the attorneys for Conella and Walker had led to reactivation of the investigation. Based on these assertions alone, the trial judge stated:

. [T]he D. A. has informed me that . . . the case against this defendant that’s now pending ... is directly connected with the other, and I don’t think I have the authority to second-guess him.

Counsel for Johnson was therefore prevented from questioning deponents in an attempt to demonstrate that their assertions had no basis in fact. He was precluded from showing either that there was no criminal litigation which could be reasonably anticipated or that the initial complaint had been finally settled and was not substantially related to the second complaint and investigation.

We are satisfied that the hearing held in the instant case did not comport with the directive of La.R.S. 44:3(C) that a judicial determination be made after a contradictory hearing. The statute requires more than judicial acceptance of a prosecutor’s assertion of privilege. A meaningful opportunity must be afforded for cross-examination and presentation of evidence to contradict the claim of privilege. If such an opportunity had been given and if Johnson had been successful in his efforts to demonstrate the inapplicability of the privilege established in La.R.S. 44:3, the records sought in connection with the original criminal complaint filed by Conella would have been available to him as provided in the Public Records Act. Moreover, the assistant district attorney and deputy sheriff would have been subject to deposition concerning the nature of those records as well as their knowledge of events related thereto in accordance with La.Code Civ.P. art. 1436. Inasmuch as we conclude that the hearing in this case was inadequate to support a judicial determination of the pertinent issues, we remand the case to the district court for a contradictory hearing held in conformity with La.R.S. 44:3.

DECREE

For the reasons assigned, the order of the district judge sustaining the motion to quash the subpoena and subpoena duces tecum is reversed and set aside and the case is remanded to the district court for a contradictory hearing in accordance with law and the views expressed herein.

      . Relator had previously sought relief to the Court of Appeal,- Third Circuit, which court refused to exercise its supervisory jurisdiction in the case and denied relator’s application for writs.

      . There was another party plaintiff, Mrs. Blanche Harper, who is not involved in the litigation which is presently before this court.

      . Subsequent to the hearing in this case on September 30, 1976, new discovery rules adopted by the legislature have gone into effect. The scope of examination and cross-examination of a deponent provided for in former La.Code Civ.P. art. 1436 are now embodied in La.Code Civ.P. arts. 1422 through 1425. In view of our disposition of this case, we find it unnecessary to address ourselves at this time to the question of whether La.R.S. 44:3 has any application to determining the scope of oral deposition in a civil case apart from establishing a privilege for records and the information contained therein.


text:
    STATE of Louisiana v. Hervia EDWARDS.
    No. 59599.
    Supreme Court of Louisiana.
    April 22, 1977.
   Writ granted. The case is remanded, and the trial court is ordered to receive evidence as to the weight of the evidence against the accused. La. C.Cr.P. art. 317(2). While State v. Jones, 252 La. 903, 215 So.2d 108 (1968), held that a defendant in a bail hearing is not subject to cross-examination as to guilt or innocence if he asserts his self-incrimination privilege, that holding does not preclude an examination of the weight of the evidence, despite dicta to the contrary.

SUMMERS, J., dissents, being of the opinion the ruling of the trial judge is correct.


author: CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. George M. FOOTE, City Judge, Alexandria City Court.
    No. 59799.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: State of Louisiana through William J. Guste, Jr., Attorney General, applying for Writs of Certiorari, Mandamus and Prohibition.

Writ denied. City of Baton Rouge v. Short, 345 So.2d 37 (La., 1977) has prospective application only to trials commenced after publication of that opinion in West’s Southern Reporter. The decision in that case did not affect the jurisdiction of the city courts over first and second offenses of driving while intoxicated. Under the new Louisiana Constitution, city courts retain the jurisdiction vested in them under the 1921 constitution over criminal cases prosecuted under state law which are not punishable by imprisonment at hard labor. La.Const. art. 5, § 15 (1974); La.Const. art. 7, § 51 (1921); La.R.S. 13:1894. First and second DWI offenses fall into this category and therefore may properly be prosecuted in city court. The decision in City of Baton Rouge v. Short directs that where a first or second DWI offense is prosecuted in city court, the prosecution must be conducted by the district attorney or his designated assistant in compliance with La.Const. art. 5, § 26(B) (1974).

CALOGERO and DENNIS, JJ.,

dissent in part, concur in part. They dissent from the denial of this writ application and would grant the writ to reconsider this Court’s opinion in City of Baton Rouge v. Short for the reasons expressed in the dissent in that ease. In light of the majority’s writ denial, however, and the finality of the opinion in that case, there having been no application for rehearing timely filed, they concur being of the view that the majority here does properly construe the holding in City of Baton Rouge v. Short.


text:
    FIRST NATIONAL BANK OF COMMERCE v. Ona Mae BLONDIN et al.
    No. 59711.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: First National Bank of Commerce applying for Certiorari, or writ of review, to the court of Appeal, 343 So.2d 318, Second Circuit, Parish of Lincoln.

Writ denied. The judgment of court of appeal is correct.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J., would grant the writ.


text:
    Stephen Randal MORRISON v. Ernest V. RICHARDS, III and Michael Patrick Psilos.
    No. 59698.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Ernest V. Richards, III applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 375, Fourth Circuit, Parish of Jefferson.

Application denied; the result is correct.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana ex rel. Morris MANUEL v. 19TH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH, Baton Rouge, Louisiana.
    No. 59600.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Morris Manuel applying for writ of mandamus.

Writ denied. There is no merit in this application.

TATE, DIXON and CALOGERO, JJ., are of the opinion that the relator is entitled under our State Constitution to a speedy hearing upon the revocation detainer.


text:
    INVESTIGATION OF POSSIBLE VIOLATION OF the CIVIL SERVICE LAW et al.
    No. 59719.
    Supreme Court of Louisiana.
    May 11, 1977.
   In Re: La.Dept. of Civil Service and the La.Civil Service Comm., applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge.

Application denied: no error of law in the court of appeal judgment.

SANDERS, C. J., is of the opinion that a writ should be granted.

DENNIS, J., is of the opinion the writ should be granted.


author: TATE and DIXON, JJ.,

text:
    CAPITAL BANK AND TRUST CO. v. G. Emitte CORE et al.
    No. 59720.
    Supreme Court of Louisiana.
    May 11, 1977.
   In Re: Capital Bank and Trust Co., applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 284, First Circuit, Parish of East Baton Rouge.

Writ denied. No error of law.

TATE and DIXON, JJ.,

are of the opinion that the mortgage creditor has sustained damages because of the defendant attorney’s malfeasant performance of his duties as a title examiner, and that therefore the plaintiff’s action is not premature.


text:
    Lawrence J. GROS, Individually and as the Administrator of the Estate of his minor sons, Michael and Billie Gros, Individually. v. HOUMA MEDICAL AND SURGICAL CLINIC et al.
    No. 59724.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Houma Medical & Surgical Clinic, et al. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1115, First Circuit, Parish of Terrebonne.

Writ refused. Since the court of appeal has remanded the case for further proceedings, the judgment is not final.

DIXON, J., is of the opinion the writ should be denied because the ruling of the court of appeal is correct.

DENNIS, J., concurs for’the reason the court of appeal judgment is correct.


text:
    STATE of Louisiana ex rel. James McCOY v. CLERK OF CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 59840.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: James McCoy applying for remedial writs.

Writ denied. Relator is not entitled to relief sought. Ruling of the trial judge is correct.

TATE and DIXON, JJ.,

concur. The relator may be entitled to a copy of the indictment and the minutes, if only to help this court understand any post-conviction application. However, the main thrust of this demand is to receive a transcript, the only matter expressly denied by the district court. Feeling that the trial court has not rejected his request for an indictment and minutes, I concur.


text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 59628.
    Supreme Court of Louisiana.
    May 13, 1977.
   In re: State of Louisiana, applying for writ of certiorari.

Writ denied. We find no error in the trial court’s ruling.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., are of the opinion that a writ should be granted.


text:
    Ann Olivier ESTILETTE v. J. D. ESTILETTE.
    No. 59230.
    Supreme Court of Louisiana.
    May 16, 1977.
   In re: Motion to Recall Writ Application.

Granted and case dismissed.


text:
    STATE of Louisiana v. George L. NATTIN.
    No. 59762.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: George L. Nattin, Sr., applying for writs of certiorari, prohibition and mandamus.

Absent palpable error or grave injustice, we will not interfere with the orderly proceedings of the district court, particularly since there is an adequate remedy on review in the event of conviction.


text:
    Willis A. PICOU v. TERREBONNE PARISH SHERIFF’S OFFICE, through its sheriff, Charlton P. Rozands.
    No. 59728.
    Supreme Court of Louisiana.
    May 13, 1977.
   In re: Willis A. Picou, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 343 So.2d 306.

Application denied; on the facts found by the Court of Appeal, there is no error in its judgment.


text:
    Dorothy Shaffett STUBBS, Individually and as the Administrator of the Estate of her minor children, Melissa Ann Stubbs, Crystal Michelle Stubbs and Melody Dawn Stubbs. v. PARISH OF EAST BATON ROUGE.
    No. 59729.
    Supreme Court of Louisiana.
    May 13, 1977.
   In re: Dorothy Shaffett Stubbs, Individually, etc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 258.

Writ denied. Judgment of Court of Appeal is correct.


text:
    Mrs. Nomie D. Martin COLE and Jake C. Martin v. M. P. MARTIN, Beatrice Martin Harris, Jasper Martin, Lee Arthur, Heirs of Willie Martin and Heirs of M. T. Martin.
    No. 59731.
    Supreme Court of Louisiana.
    May 13, 1977.
   In re: Nomie D. M. Cole, et ah, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bienville. 343 So.2d 334.

Writ refused. No error of law.


text:
    POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION v. TOWN of NEW ROADS.
    No. 59734.
    Supreme Court of Louisiana.
    May 13, 1977.
   In re: Pointe Coupee Electric Membership Corp. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Pointe Coupee. 343 So.2d 261.

Writ denied. No error of law.


text:
    In re Roy J. PERILLOUX, applying for supervisory writs of review to the 29th judicial district court for the Parish of St. Charles, the Hon. Thomas J. Malik.
    No. 59890.
    Supreme Court of Louisiana.
    May 18, 1977.
   In re: Roy J. Perilloux applying for supervisory writs of review.

Writ denied. Inadequate showing for exercise of our supervisory jurisdiction. Adequate remedy by expedited appeal in court of appeal.


text:
    John A. KYLE, Rosemary Deig, Wife of/and George Godbey v. CITY OF NEW ORLEANS, New Orleans Police Department, "A & B” Insurance Companies, Lieutenant Eugene Fields, Officers Wilson, Bruno and "John Doe”.
    No. 59683.
    Supreme Court of Louisiana.
    May 18, 1977.
   In re: John A. Kyle, Rosemary Deig, Wife of/and George Godbey apply for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 1257.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Lacy Eugene DAVIS v. TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA, through Louis D. Rogers, Chairman of its Board of Trustees.
    No. 59723.
    Supreme Court of Louisiana.
    May 19, 1977.
   In re: Teachers’ Retirement System of Louisiana, through Louis D. Rogers, Chairman of its Board of Trustees, applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 270.

Writ denied. On the facts found the result is correct.


author: ELLIS, Judge:

text:
    Thomas M. STEWART et al. v. LIVINGSTON PARISH POLICE JURY et al.
    No. 10595.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Karl W. Cavanaugh, Denham Springs, for appellants.
    Calvin C. Fayard, Jr., Livingston, for Police Jury.
    Charles W. Borde, Jr., Denham Springs, Bert K. Robinson, Baton Rouge, for defendants-appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ON MOTION TO DISMISS

ELLIS, Judge:

Defendants Livingston Parish Police Jury and the City of Denham Springs ask that we dismiss this appeal on two grounds. First, because a proper bond has not been posted; and, second, that the record herein was not timely lodged in this court.

The latter ground is based on the allegation that the order extending the time for lodging the record in this court was not signed by the district judge. The allegation is made because the signature on the order extending the time does not appear to have been signed by the same hand that signed the judgment herein.

Article 2161 of the Code of Civil Procedure provides:

“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.”

The record was lodged in this court on September 5, 1975. The extended return day was September 15, 1975. This motion was filed on October 16, 1975, more than three days after the latter date. The motion on this ground therefore comes too late.

The record shows that the plaintiffs deposited $500.00 cash with the Clerk of Court in lieu of the bond ordered when a temporary restraining order was issued herein on May 16, 1975. Written reasons for judgment dissolving the restraining order and dismissing the suit on its merits were handed down on May 27, 1975, and judgment in accordance therewith was signed on June 9, 1975.

On June 20, 1975, plaintiffs were granted a devolutive appeal, upon furnishing a $300.00 bond. The minutes for that day show that a $300.00 cash bond was posted in the office of the Clerk of Court. A certificate, dated August 28, 1975, appears in the record, stating that “a cash bond in the amount of $500.00 was deposited in the above named matter for the appeal bond. Bearing date May, 1975.”

Defendants claim that the latter bond is the same as the bond posted for the issuance of the temporary restraining order, and, therefore, cannot also stand as an appeal bond. We cannot tell from the record if this contention is correct or not. In any event, under Article 5123 of the Code of Civil Procedure, the trial court is the proper forum for testing the validity of bonds furnished as security in judicial proceedings, and we are without jurisdiction.

The motion to dismiss is therefore denied, at defendants’ cost.

Motion denied.


author: LOTTINGER, Judge.

text:
    Elam (Elem) PICOU et al. v. The LOUISIANA LAND AND EXPLORATION COMPANY.
    No. 10814.
    Court of Appeal of Louisiana, First Circuit.
    May 10, 1976.
    Jerry H. Schwab and Robert B. Butler, III, Houma, for appellant.
    Lawrence K. Benson, Jr., Milling, Benson, Woodward, Hillyer & Pierson, New Orleans, for appellee.
    Before ELLIS, BLANCHE and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a possessory action. This Court on March 15, 1976, issued alternative writs of mandamus, certiorari and prohibition commanding the Trial Judge to order the defendant to answer each and every one of the interrogatories propounded by plaintiffs fully and completely both for the time period prior to April 16, 1973, (d'ate possessory suit was filed), and also for the time period after April 16, 1973, or in the alternative for the Trial Judge and the respondent, The Louisiana Land and Exploration Company (hereinafter sometimes referred to as LL&E), to show cause by brief on or before March 29, 1976, why the writ should not be made peremptory. The Trial Judge and the respondent have elected the alternative. In the event the alternative was elected, and until further orders of this Court, all proceedings against the relators in this cause in the Trial Court were stayed and suspended.

Briefly, the record points out that this possessory action has been brought by the plaintiffs-relators to have their possession of certain property in Terrebonne Parish, Louisiana, recognized and maintained, and thus is a civil suit subject to the appellate and supervisory jurisdiction of this Court. Art. 5, § 10(A) La.Const. (1974).

The plaintiffs-relators propounded some 21 various interrogatories to the respondent, to which the respondent objected generally as to those interrogatories which sought to discover anything which occurred after April 16, 1973, the date of filing suit. The respondent specifically objected to Interrogatories Nos. 1, IS and 16.

Hearing was held in the Trial Court as to why the respondent should not be ordered to answer all of relators’ interrogatories fully and completely both for the period prior to April 16, 1973, and for the period subsequent thereto. The Trial Judge sustained the respondent’s objections and overruled relators’ motion to compel the respondent to answer interrogatories, except that he ordered the respondent to supplement its answers to Interrogatories Nos. 15 and 16 so as to provide information for the period prior to April 16, 1973. It was from this order of the Trial Court that the relators’ applied for writs to this Court.

The relators contend that the Trial Judge was in error (1) in refusing to compel the respondent to state, in its answer to Interrogatory No. 1, whether it claimed it was in possession of the property at the time suit was filed or at any time during the year preceding the filing of suit; (2) in sustaining respondent’s objections insofar as the period subsequent to April 16, 1973, is concerned in refusing to order the defendant to answer Interrogatories 15 and 16 for that period; (3) in sustaining respondent’s objections and refusing to order the respondent to answer Interrogatories 17 and 18 ; and (4) in sustaining respondent’s objection and refusing to order the respondent to answer Interrogatories 19 and 20 .

The use of interrogatories as a discovery device is governed by LSA-C.C.P. arts. 1491 and 1436. It is interesting to note that Code of Civil Procedure art. 1436 in part states that “[i]t is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evi-dence.” As this Court said in Gaudet v. Lawes, 166 So.2d 337, 342 (La.App. 1st Cir. 1964),

“ * * * [I]t seems the announced purpose of the discovery statute is to insure a full and fair trial on the merits of each case by affording all litigants full opportunity to obtain the true facts pertinent to each individual case. To this end discovery also sanctions the disclosure of all issues, both legal and factual, intended to be relied upon by each litigant to eliminate the element of surprise and assure that each party may be fully aware of and prepared to meet, defend and answer all issues which may be presented during the trial irrespective of whether same be related to questions of law or fact.”

Therefore, we conclude that through the use of discovery devices, all party litigants should have the availability of all facts, whether these facts be admissible at trial or not, in order to be fully prepared for the presentation of their cases so that justice can be done.

Both the Trial Judge and the respondent, LL&E, in answering the alternative writ contend that as to Interrogatory No. 1, it is up to the plaintiffs-relators to prove the requisites of LSA-C.C.P. art. 3658, and since the respondent, LL&E, only claims that the plaintiffs-relators were not in possession, there is no need for LL&E to be compelled to answer this interrogatory. This contention would perhaps be true if it was shown that any answer to Interrogatory No. 1 could be of no possible help to relators in the preparation of their case. We are, however, of the opinion that an answer, whatever it may be, which would be of some aid to relators in the preparation of their case, and could reasonably lead to the discovery of admissible evidence, is proper. This is not to say that such an answer is admissible at a trial on the merits. Admissibility is not a prerequisite for the answering of an interrogatory. LSA-C.C.P. art. 1436. If the answer to Interrogatory No. 1 aids the relators in the preparation and prosecution of their suit, it falls within the spirit and purpose of discovery procedure, and therefore the respondent, LL&E, should be compelled to answer same.

As to the other three specifications of error concérning Interrogatories Nos. 15 through 20, as to whether relators are entitled to answers which relate to the period of time subsequent to the date on which suit was filed, both the Trial Judge and LL&E refer this Court to the case of Ree Corporation v. Shaffer, 261 La. 502, 260 So.2d 307 (1972) for the proposition that the issue before the Court is whether plaintiffs in a possessory action had the type of possession required by the Code of Civil Procedure for more than a year prior to the disturbance complained of, Thusly, they argue that any activity on the part of LL&E after the date of the filing of suit is of no moment.

We believe, however, that this argument goes more to the admissibility of the evidence at a trial on the merits, rather than to the validity of the objection to the interrogatory. As we .have above noted, if an answer to an interrogatory will aid a party litigant in the preparation of his case, and will reasonably lead to the discovery of admissible evidence, it should be answered. We do not agree that it was ever intended that the strict rules of evidence be used to prohibit answers to interrogatories. Here also we believe that justice will be served by these interrogatories being answered.

Therefore, for the above and foregoing reasons, the writ issued by this Court is made peremptory. This matter is now remanded to the Trial Court for further proceedings in accordance with the views expressed herein, and all costs of this proceeding before this Court are taxed to respondent, LL&E.

BLANCHE, J., dissents and assigns reasons therefor.

      . Interrogatory No. 1:
      “Do you claim that you were in possession of the property which is the subject of this suit at the time this suit was filed or at anytime during the year preceeding [sic] the filing of this suit.”
      Interrogatory No. 15:
      “Do you at the present time hold, as lessee or as assignee of any lessee, property involved in this suit, under any oil[,] gas and mineral lease, or any other type of lease whatsoever.”
      Interrogatory No. 16:
      “If to the preceeding [sic] question is in the affirmative, please give: (1) name and address of each lessor from whom you and/or your assignor lease any portion of the property, (2) the name and address of each lessee who has assigned his interest or a portion thereof to you, (3) a description of the property or the portion of the property which you lease as lessee or hold as assignee of any lessee, (4) the recordation data for each such lease and/or assignment, (5) if any such leases and/or assignments are unrecorded, the name and address of the person having custody thereof, (6) the date each such lease and/or assignment began, (7) the name of each of the Plaintiffs to whom you or your assignor, if any, have paid rent or royalties under each such lease and/or assignment, and the dates and amounts of such payments.”

      . Interrogatory No. 17:
      “Have you at- any time in the past held, as lessee and/or assignee of any lessee, any portion of the property involved in this law suit under any type of oil [, ] gas and mineral lease or any other type of lease whatsoever.” Interrogatory No. 18:
      “If your answer to the preceeding [sic] question is in the affirmative, for each such lease, the data of which is not given in your answer to Interrogatory 16 above, please give: (1) name and address of each lessor from whom you and/or your assignor lease any portion of the property, (2) the name and address of each lessee who has assigned his interest or a portion thereof to you, (3) a description of the property or the portion of the property which you lease as lessee or hold as assignee of any lessee, (4) the recordation data for each such lease and/or assignment, (5) if any such leases and/or assignments are unrecorded, the name and address of the person having custody thereof, (6) the date each such lease and/or assignment began, (7) the name of each of the Plaintiffs to whom you or your assignor, if any, have paid rent or royalties under each such lease and/or assignment, and the dates and amounts of such payments.”

      . Interrogatory No. 19 :
      “Have you made any payments of rental or royalties to any of the Plaintiff[s] which are not described in your answer to the pre-ceeding [sic] interrogatories for or on account of any mineral lease or any type of lease whatsoever covering a portion of the property involved in this law suit.” Interrogatory No. 20:
      “If the answer to the preceding question is yes, for each such lease for or on account of which you have paid rental to any of the Plaintiffs, please give: (1) the recordation data of each such lease, (2) the name of each Plaintiff to which you made a payment of rental, (3) a description of the portions of the property covered by each such lease, (4) the date of commencement and the date of termination of each such lease, (5) a full and exact description of the instrument, agreement, or arrangement by or under which you paid rental or royalties, including whether your interest was as assignee, lessee, working interest partner with a lessee, or otherwise, and give the name and adress [sic] of the person having custody of such agreement.”

      . LSA-C.C.P. art. 1491 provides:
      “Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may accompany the petition or be served after commencement of the action and without leave of court. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within fifteen days from service thereof unless the court, on motion and notice and for good cause shown, enlarges or shortens the time. Within ten days after service of interrogatories a party may serve written objections thereto. Answers to interrogatories to which objection is made shall be deferred until the objections are determined.
      “Interrogatories may relate to any matters which can be inquired into under Article 1436, and the answers may be used to the same extent as provided in Article 1428 for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court, on motion of the deponent or the party interrogated, may render such protective order as justice may require. The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, embarrassment, oppression, or undue expense. The provisions of Article 1452 are applicable for the protection of the party from whom answers to interrogatories are sought under this article.” LSA-C.C.P. art. 1436 provides:
      “A party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. After commencement of the action the deposition may be taken without leave of court, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff within fifteen days after commencement of the action. The attendance of witnesses may be compelled by the use of subpoena as for witnesses in trials. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
      “Unless otherwise ordered by the court as provided by Article 1452 or 1454, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the demand or defense of the examining party or to the demand or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and locations of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.
      “Examination and cross examination of deponents may proceed as permitted at the trial.”


author: COVINGTON, Judge:

text:
    James M. BOONE v. William M. ROBERTSON d/b/a Robertson Texaco.
    No. 10902.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 1976.
    James M. Boone, in pro. per.
    J. Glenn Dupree, Baton Rouge, for appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This matter came before the court through application by James M. Boone for writs of certiorari or review, complaining that the trial judge improvidently refused to dismiss an untimely motion for a new trial filed by William M. Robertson.

An alternative writ of mandamus was issued by this court on May 4, 1976, directing the trial judge to dismiss the application or, in the alternative, to show cause why the writ should not be made peremptory and, in case of the latter, that a writ of certiorari issue, directing him to transmit the record to us. The order further stayed all proceedings in the City Court pending action by this court.

The trial judge declined to dismiss the application for a new trial. The record, together with a per curiam by Judge Can-gelosi, is now before the court.

The pertinent chronology of events is: suit was filed by plaintiff on October 16, 1975, claiming that the defendant owed him $1,000.00; personal service was made on the defendant on October 20, 1975, and he filed his answer on October 24, 1975. The case was tried on February 13, 1976, with the plaintiff appearing in proper person and the defendant being personally present and represented by counsel. The court then took the matter under advisement and on March 22, 1976, handed down Written Reasons for Judgment; in accordance therewith, judgment was signed on March 26, 1976, in favor of the plaintiff in the principal amount of $329.18.

On April 5, 1976, the defendant’s counsel filed a motion for a new trial. On April 12, 1976, the plaintiff filed a motion to dismiss the application as being untimely. On April 26, 1976, the trial judge overruled the plaintiff’s motion and granted the new trial. The matter is before us now through the procedure set out in the first paragraph hereof.

The position of the trial judge is that the application for a new trial was timely because it was made within three (3) days of the defendant receiving notice, by inquiry, of the formal judgment. He notes that no notice of judgment was mailed to the defendant.

This case is governed by the provisions of C.C.P. arts. 4898 and 5002.

Article 4898 provides that notice of judgment “shall be served on a defendant against whom judgment is rendered if the citation was not served on him personally, and he failed to answer. Notice of judgment need not be given in any other case.” (Emphasis added).

Article 5002, under Title III, “Cases Involving More Than One Hundred Dollars”, affecting City Courts provides, in pertinent part:

“Notice of the rendition of judgment is not necessary, except as provided in Article 4898.”
* * * * * *
“A new trial may be applied for within three days, exclusive of legal holidays, of the date of judgment or of the service of notice of judgment when necessary.”

It is noted that Article 5002 specifically refers back to Article 4898.

Therefore, notice of judgment is required in City Court only when a defendant is not personally served and does not answer; Acme Construction Co., Inc. v. Douglas, 297 So.2d 791 (La.App. 4 Cir., 1974).

Since the defendant, under article 4898, was not entitled to a notice of judgment, he having not only been personally served but also having filed an answer, the delay for filing the motion for a new trial began to run from the date of judgment and the motion was untimely.

Therefore, the writ is made peremptory and it is hereby ordered, adjudged, and decreed that the trial court recall its order granting the defendant a new trial and dismiss the motion for the same. Costs of this application are assessed against the respondent.

REMANDED WITH DIRECTIONS.


author: LANDRY, Judge.

text:
    Harry J. BOUDREAUX v. Ralph FALSETTA et al.
    No. 10790.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      E. Robert Sternfels, Napoleonville, for appellant.
    Robert J, Vandáworker, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This appeal by plaintiff Harry Boud-reaux (Appellant) is from judgment rejecting his demands against defendants Ralph Falsetta, an uninsured motorist, and Southern Farm Bureau Casualty Insurance Company, Appellant’s insurer, pursuant to a policy containing an uninsured motorist clause, for personal injuries and related expense sustained and incurred by Appellant in an automobile accident. The trial court rejected Appellant’s demands upon finding Appellant contributorily negligent. We affirm.

The issues presented on appeal are purely factual. The accident occurred at approximately 10:45 P.M., May 1, 1973, at the exit of the Sunshine Square Shopping Center (Center) and Louisiana Highway 1, south of Donaldsonville, Louisiana. At the accident scene the paved, two lane highway runs in a northerly-southerly direction and is straight and level. On the east and west side of the highway are situated shoulders approximately six feet wide. At the time of the accident the night was clear and the roadway dry. Defendant, accompanied by his wife and Mr. and Mrs. Harvey Blanchard, was leaving the Center after having dined at a restaurant situated on the west side of Highway 1. As defendant was in the act of turning left onto the highway to proceed northerly, his vehicle was struck on its left side by Appellant’s automobile being driven by Appellant who was proceeding southerly in his proper lane of travel.

The testimony concerning the occurrence of the accident, as given by the opposing parties, is totally irreconcilable. Appellant testified he was proceeding southerly in the southbound lane at a speed of approximately SO miles per hour. He was thoroughly familiar with the highway, having lived in the area for some time. He was proceeding homeward after having taken a ride to Donaldsonville. He first noticed the Falsetta vehicle approach the Center exit when he was approximately 150 feet north of the exit. He assumed the vehicle, evidently about to enter the highway, would yield the right of way to him. Nevertheless, he cautiously removed his foot from the accelerator of his car and pulled slightly to his left to about the center of the highway. When he reached a point approximately 125 feet north of the Center exit, he realized Falsetta was going to enter the highway without stopping. Appellant then applied his brakes full force and veered to his right in an effort to avoid the impending collision. When he applied his brakes his vehicle began sliding to the right, or in a westerly direction. The right rear side of his vehicle struck the left rear side of the Falsetta automobile in the southbound lane.

The accident was investigated by Officer Larry Landry, Donaldsonville Police Department, who testified that speed limit in the area was 50 miles per hour. The Officer found skid marks commencing on the center line of the highway 140 feet from what Landry determined to be the point of impact. He found the point of impact to be approximately in the center of the southbound lane and the center of the exit which was wide enough to accommodate three cars abreast. He fixed the point of impact by debris found in the center of the) southbound lane, at which spot the skid marks ended. He found no skid marks south of the point of impact. Officer Landry also found that Appellant’s vehicle traveled an additional 100 feet south of the point of impact and overturned and came to rest on its top in the ditch on the west side of the highway. He further found that defedant’s car swung around about 30 feet from the point of impact and came to rest with its rear wheels in the ditch on the east side of the highway, a few feet north of the exit, its front extending approximately five feet into the northbound lane, He fo.und the rear portion of the right side of Appellant’s car struck the rear part of the left side of defendant’s automobile. He stated that upon interrogating Appellant, he was told that Appellant did not see the Falsetta vehicle until it was too late. He related that he smelled a faint trace of alcohol on Appellant’s breath and attempted to take a sobriety test of Appellant at the hospital to which Appellant was removed following the accident. He added he did not take the test because he was informed by Appellant’s attending physician that such tests were contrary to ' hospital policy.

Defendant Falsetta and his guest passenger Harvey Blanchard, who sat on the front seat beside Falsetta, testified in essence that defendant stopped at the exit before entering the highway, in obedience to a stop sign situated there. Blanchard looked to the right and assured Falsetta there was no traffic approaching from the south. Falsetta looked to his left, north, and noted the approach of Appellant’s vehicle which Falsetta judged to be 150 to 200 yards distant. Both witnesses testified that Falsetta drove onto the highway, entered the northbound lane and proceeded approximately 40 to 50 feet therein when suddenly plaintiff’s vehicle veered to its left and sideswiped the Falsetta car.

Mrs. Falsetta and Mrs. Blanchard testified essentially that Falsetta stopped in the exit before entering Highway 1. Neither witness was aware of the approach of the Boudreaux car. Both stated, however, they believed the Falsetta vehicle was completely in the northbound lane at the moment of impact.

In oral reasons dictated into the record, the trial court apparently pretermitted the issue of defendant’s negligence and rejected Appellant’s claim on finding Appellant guilty of contributory negligence in traveling at an excessive rate of speed and failing to maintain a proper lookout. Based on the skid marks left by Appellant’s vehicle and the distance it traveled following impact, the trial court found in effect that Appellant was traveling at approximately 70 miles per hour. The trial court also found Appellant negligent in failing to timely note the presence of defendant’s vehicle.

It is well established law that the finding of facts by trial court are to be accorded great weight on appeal. Where such findings are based on evidence, which after evaluation of credibility furnishes a reasonable factual basis for the trial court’s findings, an appellate court on review should not disturb or overrule such factual findings except on a showing of manifest error. Canter v. Koehring Com pany, La., 283 So.2d 716, and authorities therein cited.

Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact made and found by a trial court should not be disturbed on appeal even though the reviewing court feels that its own but different inferences are as reasonable. Canter v. Koehring Company, above.

Under the circumstances of this case we find no manifest error in the trial court’s conclusions that Appellant’s claim is barred by Appellant’s contributory negligence in the respects found. On the contrary, we find the physical facts support the findings made below.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: BOUTALL, Judge.

text:
    LAR, INC. v. BANK OF LOUISIANA IN NEW ORLEANS.
    No. 7987.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    George C. Stringer, Jr., Harahan, for James Warren Negrotto, appellee.
    Michael H. Bagot, John H. Gniady, New Orleans, for appellant.
    Before BOUTALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

This appeal involves the fault of an agent causing its principal to lose part of an advance deposit of brokerage fees made in expectation of obtaining a loan commitment. From an adverse judgment in favor of James Warren Negrotto, third-party defendant Pringle-Associated Mortgage Corporation has taken this appeal.

The original suit and subsequent, numerous, third-party actions arise from a series of negotiations involving Negrotto and two third-party defendants that acted as broker in attempting to secure financing for the construction of a motel on Negrotto’s beachfront property. Pringle-Associated Mortgage Corporation and Lar, Inc. entered into several written agreements with Neg-rotto culminating in the agreement of October 18, 1967, as amended by agreement on October 31, 1967, to secure the necessary loan commitment for a fee of ten percent of the total loan commitment, to be divided between co-brokers and investor as stated, payable when the loan was actually confirmed.

The testimony of both parties agree that there was to be established an escrow account in two banks (1% each) in the amount of 2% of the loan commitment for the investor. The escrow agreement was to be effective for 30 days, unless a loan commitment was received. If no commitment was received, the 2% amount was to revert to the borrower, Negrotto. If the commitment was made, the sum was to go to the investor making the loan commitment.

At the time of the final agreement on October 31, James Warren Negrotto presented two cashier’s checks drawn on the Bank of Louisiana in New Orleans payable to the order of Lar, Inc. and Pringle-Associ-ated Mortgage Corp. in the sum of $11,000 each (each 1% of loan commitment). The checks were presented to a representative of Lar, Inc. and Lillian Rothstein, a representative of Pringle-Associated Mortgage Corporation (Pringle).

Subsequent to that date, Negrotto had payment on the checks stopped after he discovered that the purported investors were “fake”. Payment was successfully stopped on one of the $11,000.00 checks, but the other had been negotiated and paid. No valid loan commitment was ever made by the investor and Negrotto seeks recovery of the $11,000.00.

Appellant contends the trial court judgment to be erroneous in finding a duty owed by Pringle to establish the escrow account, finding the co-brokers to be liable in solido, and in dismissing the suit against Lar, Inc. while maintaining the suit against Pringle.

We do not agree that any issue of solida-ry liability is relevant to this appeal. We find no language in either the judgment or the Reasons for Judgment that indicates any finding of liability in solido between Pringle and Lar, Inc., nor any finding of joint liability of Pringle and Lar, Inc. for the $11,000.00.

Instead, the trial judge found in his reasons for judgment that:

“The court feels that Pringle was the agent of Mr. Negrotto and the actions of Pringle’s employee, Mrs. Rothstein, in not assuring that these funds were deposited in an escrow account over which Pringle had control, results in the liability of Pringle to Mr. Negrotto.”

Thus, it is apparent that fault, or negligence, was the basis of liability found by the trial judge in the agent-principal relationship of Pringle and Negrotto.

The applicable Codal provisions are stated in articles 3018 and 3019 of the Louisiana Civil Code:

“Article 3018. Brokers are not responsible for the events which arise in the affairs in which they are employed; they are only, as other agents, answerable for fraud or faults.”
“Article 3019. Brokers, except in cases of fraud [on their part], are not answerable for the insolvency of those to whom they procure sales or loans, although they receive a reward for their agency and speak in favor of him who buys or borrows.”

The issue before us is whether Prin-gle, through its agent Lillian Rothstein, committed an act constituting fault which would create liability to Negrotto.

Both Rothstein and Negrotto attempted to verify the financial stability of the lender. The testimony became contradictory on the point of who caused Negrotto to hand over the checks. Negrotto testified that Pringle furnished Rothstein’s services to him to help and advise him in the transaction; that Rothstein told him that she was satisfied with the lender and to turn over the checks to Lar. Rothstein admitted she was there to advise and part of her job was to ascertain if the investor was valid, but she testified that she advised Negrotto against going ahead with the deal or turning over the checks.

The trial judge accepted the testimony of Negrotto on that point as to why he turned over the checks to Rothstein. As such, the trial judge made a credibility determination, and such a determination of credibility is entitled to great weight upon review. Canter v. Koehring Company, 283 So.2d 716 (La.S.Ct., 1973).

Rothstein was an attorney with considerable experience in financial investment matters and she admitted that she had doubts about the genuineness of the proposed lenders. Nevertheless, she endorsed the checks on behalf of Pringle without condition and turned the checks over to Lar’s agent. The checks were not endorsed for deposit, but instead endorsed in a manner to make them negotiable. She testified that in previous dealings with Lar this had been done without any subsequent trouble. This action effectively eliminated any control over the checks by Negrotto or Pringle. Based on a combination of these facts and the advice of Rothstein, Negrotto handed over the checks totalling $22,000.00, but the checks were not put into escrow by Lar. Instead, the checks were used for the benefit of Lar and the money was not refunded to Negrotto when it became known to all parties that there would be no loan commitment by the investors.

In short, Negrotto’s loss of the $11,000.00 was caused by his agent Pringle failing to insure that the interests of Negrotto were protected in dealing with an unknown investor. We agree that the liability of Prin-gle arises from such fault.

Accordingly, for the foregoing reason, the judgment appealed is affirmed.

AFFIRMED.

      . The relevant parts of the October 18, 1967 agreement entitled “ESCROW AGREEMENT”:
      “Borrower hereby retains the services of the Broker to obtain the commitment described in 2 above.
      “The Borrower agrees to establish an Escrow Deposit in an amount equal to 1% of the gross amount of the loan described herein, said escrow to be established with Chase Manhattan Bank of New York, New York, hereinafter designated as the “Bank” on or before October 20, 1967. The Escrow is to be established for a period of 30 days and to provide for the following:
      “The “Bank” is by this instrument instructed to release the full amount of the said Escrow Deposit to the Broker upon receipt of a copy of said loan commitment which has been issued to the Borrower. Said deposit shall be retained by Broker as liquidated damages in the event Borrower shall refuse to accept the same provided it meets the conditions herein specified.”

      The relevant part of the October 31, 1967 agreement which modified the October 18, 1967 agreement is:
      “That 2% of the loan amount is this day being disbursed to the investor in accordance with the Escrow Agreement executed on October 18, 1967.”


author: ELLIS, Judge.

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. CITY OF BATON ROUGE et al.
    No. 10507.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 15, 1975.
    Rehearing Denied March 1, 1976.
    Writ Refused April 13, 1976.
    Kenneth Dejean, Baton Rouge, for appellant.
    Joseph F. Keogh, City-Parish Atty., Fred Benton, Jr., and Richard Nevils, Baton Rouge, for City and Parish.
    Harry M. Zimmerman, Jr., and Phillip A. Wittmann, New Orleans, for Pittman.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   ELLIS, Judge.

This suit was instituted by William J. Guste, Jr., Attorney General of this State, to have nullified a contract between the City of Baton Rouge and Parish of East Baton Rouge on the one hand and Pittman Construction Company, Inc.,-on the other. The suit is brought under the provisions of R.S. 38:2293, which directs the Attorney General to bring an action to nullify any public contract which contains closed specifications not properly approved by the building authority.

After a summary hearing, judgment was rendered dismissing the suit. From that judgment, an appeal has been taken by William M. Duke and Somar, Inc., alleging that they could have intervened in the trial court and therefore have a right to appeal, under the provisions of Articles 1091 et seq. and 2086 of the Code of Civil Procedure.

A motion to dismiss the appeal has been filed in this Court by the defendants. Two grounds are alleged for the motion. First, it is alleged that such an action can be brought only by the Attorney General under R.S. 38:2293, and therefore only the Attorney General can appeal.

Second, it is claimed that R.S. 38:2290 et seq. are criminal statutes, which can only be enforced by a representative of the State.

The statutes involved are found in Title 38, Chapter 10, Part V of the Revised Statutes, entitled “Regulations of Closed Specifications and Exclusive Distribution of Materials” which was adopted by Act 40 of 1965, Art. 1.

R.S. 38:2290 provides:

“A. No architect or engineer, either directly or indirectly, shall submit a closed specification of a product to be used in the construction of a public building or project, unless all other products, other than the one specified, would detract from either the utility or appearance of the building or the uniform appearance of other public buildings in the immediate vicinity.
“B. Under no circumstances shall a closed specification be submitted, or authorized, where any person or group of persons possess the right to exclusive distribution of the specified product.”

R.S. 38:2293 provides:

“Any contract entered into in violation of the provisions of this Part shall be considered null and void and the Attorney General is directed to institute legal proceedings to have the contract judicially declared null and void; all costs of the proceedings to be borne by the defendant, or defendants.”

We find no merit to the contention that no one except the Attorney General can bring an action to nullify a public contract containing an improper closed specification. Although it is clear that it is his duty to do so, it is also clear that the citizens and taxpayers of this State enjoy the right to seek judicial review of illegal acts of their public servants. Roussel v. Noe, 274 So.2d 205 (La.App. 1 Cir. 1973). It is true that a taxpayer could not criminally prosecute for violations of R.S. 38:2290, under the penal clause of the statute, R.S. 38:2296. However, we are of the opinion that his right to contest civilly the validity of the contract is without question.

Mr. Duke and Somar, Inc. are shown by the record to have a real interest in the validity of the contract, since it is claimed that their ability to bid competitively would have been adversely affected if the contract contained an improper closed specification.

We are of the opinion that they could have intervened in the trial court in this case, and therefore have the right to appeal from the judgment herein.

The motion to dismiss is denied. Defendants are to pay all costs for which they may be responsible under the law.


author: CHIASSON, Judge.

text:
    Myrtis R. Gilley BRADFORD, Natural Tutrix of Donald R. Gilley v. J. RAY McDERMOTT & CO., INC. and the Travelers Insurance Company.
    No. 11268.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      James C. Boies, Rayville, for plaintiff.
    John G. Torian, II, Davidson, Meaux, On-ebane & Donohoe, Lafayette, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

The motion to dismiss this appeal is based on the grounds that the record was not lodged in this Court on or before the extended return day and that the delay was caused by the failure of appellant to timely pay the costs and fees.

The record reflects that the original return day for this devolutive appeal was October 29, 1976. On October 27, 1976, the clerk applied for and obtained an extension to November 26, 1976. On November 2, 1976, the clerk mailed a statement of the amount due to appellant’s attorney, who, on November 22, 1976, mailed a check for said amount to the clerk. The check was received by the clerk on November 24, 1976, who thereafter mailed the record to this Court on November 29, 1976. The record was received and filed by the Clerk of this Court on November 30, 1976.

The extended return date, Friday, November 26, 1976, the day after Thanksgiving, was proclaimed a legal holiday by the Honorable Edwin Edwards, Governor, State of Louisiana, under the authority granted to him by Title 1, Section 55 of the Louisiana Revised Statutes of 1950. When the last day of the time allowed to lodge a record on appeal is a legal holiday, the period is extended until the end of the next day which is not a legal holiday. Code of Civil Procedure Art. 5059. The next day, not a legal holiday, was Monday, November 29, 1976, the day on which the record was mailed by the Clerk of the District Court.

The mailing of the record on the return date has previously been held to be timely transmittal of the record within the meaning of Louisiana Revised Statute, Title 13, Section 4445. Martin v. Garlotte, 261 La. 967, 261 So.2d 632 (1972).

The conclusion that the appeal was timely renders moot the question of whether the appellate costs were timely paid.

The motion to dismiss the appeal is denied.

MOTION DENIED.