author: MARCUS, Justice.

text:
    STATE of Louisiana v. Anthony LEE.
    No. 62243.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      James Miguez, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Nick Pizzolatto, Jr., Lake Charles, Asst. Dist. Atty., for plaintiff-ap-pellee.
   MARCUS, Justice.

Anthony Lee was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of previous felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve fifty years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on twelve assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for a continuance based upon the state’s alleged failure to comply with La.Code Crim.P. arts. 722 and 729.3. He argues that the state’s failure to comply with these discovery provisions together with the denial of his motion for a continuance deprived him of his right to prepare for trial.

Defendant and Daniel Kirt were charged in the same information with having participated in the same armed robbery. However, on the morning of the first day of trial (January 23, 1978), the state elected to try them separately. The state filed a separate information charging defendant with armed robbery and proceeded to trial on that information.

Prior to trial, defendant had filed a motion for discovery and inspection requesting, inter alia, that the state, pursuant to La.Code Crim.P. art. 722, be ordered to permit defendant to inspect and copy any relevant written or recorded confessions or inculpatory statements made by a codefend-ant and intended for use at trial, including any exculpatory evidence even though not intended for use at trial. On December 2, 1977, the trial judge granted the motion.

On the morning of trial, defendant moved for a continuance alleging that Kirt was prepared to testify for the state and that the state had failed to provide defendant with a transcript of testimony given by Kirt at his preliminary examination conducted on December 13, 1977. Defendant argued that the state’s failure to provide him with a transcript of inculpatory statements made by Kirt at the preliminary examination violated La.Code Crim.P. arts. 722 and 729.3. Defendant requested that the trial judge allow him access to the transcript and a continuance to prepare for Kirt’s expected testimony at trial.

The trial judge denied defendant’s motion for a continuance but ordered that the transcript of Kirt’s testimony at the preliminary examination be made available to defendant.

Pretermitting the question of the applicability of article 722 to Kirt’s preliminary examination testimony, we find no abuse of discretion by the trial judge in denying defendant’s motion for a continuance. La.Code Crim.P. art. 729.5A provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

Article 729.5A authorizes the trial judge to impose a wide range of alternative sanctions for the failure of a party to comply with court-ordered discovery. The trial judge may grant a continuance; however, a continuance is not mandated by this article.

In the instant case, the trial judge did in fact provide defendant with a transcript of Kirt’s preliminary examination testimony on the afternoon of January 23, 1978. Kirt testified at defendant’s trial on January 25, 1978. Hence, the defense had ample time to study the transcript prior to Kirt’s testimony and, in fact, the record reflects that defense counsel utilized the transcript during the cross-examination of Kirt. Moreover, it should be noted that Kirt’s recorded testimony at the preliminary examination was not used by the state at defendant’s trial. Under these circumstances, we find no prejudice to defendant resulting from the trial judge’s denial of his motion for a continuance.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a continuance grounded on the claim that he was no longer indigent and that he had made arrangements to retain counsel to represent him. Defendant argues that a continuance was necessary for retained counsel to prepare for trial and that the denial of a continuance deprived him of his right to counsel of his choice.

On November 10, 1977, defendant informed the court that he could not employ counsel, and the court appointed counsel, Ms. Carla Chrisco, to represent him. Thereafter, Ms. Chrisco filed and urged appropriate pretrial motions on behalf of defendant. On the morning of trial, January 23, 1978, defendant filed a motion for a continuance based on the contention that he was no longer indigent and desired to retain counsel to represent him. At the hearing on defendant’s motion for a continuance, defendant testified that he desired to retain Robert Jacques as counsel to represent him. He stated that he would be able to retain Mr. Jacques with funds secured from the settlement of a civil case previously filed by him. The settlement funds were in the form of a draft from Greyhound Lines, Inc. in the sum of $1,200, dated December 23, 1977. Although defendant did not have access to these funds ($800 after deduction for attorney fees) until a few days prior to trial, defendant testified that he had knowledge of and consented to the settlement figure on December 13, 1977. Defendant also testified that he expected additional funds to aid him in retaining counsel from a sister residing in Denver, Colorado. Defendant had telephoned his sister the night before the day of trial to request these additional funds. He stated that he had not contacted his sister earlier because it was not until then (night before trial) that he realized the “seriousness” of the charge against him.

The trial judge denied defendant’s motion for a continuance, and court-appointed counsel thereafter represented defendant at trial.

Defendant’s right to the assistance of counsel is guaranteed by both state and federal constitutions. U.S.Const, amend. VI; La.Const. art. 1, § 13. The right of a defendant to counsel of his choice has been implemented by La.Code Crim.P. art. 515, which provides in pertinent part:

Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court.

This court has, however, consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. State v. Anthony, 347 So.2d 483 (La.1977); State v. Frezal, 278 So.2d 64 (La.1973); State v. St. Amand, 274 So.2d 179 (La.1973). The right of defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, supra. Once the day of trial arrives, the question of substitution of counsel rests largely within the discretion of the trial judge. See State v. St. Amand, supra; State v. Austin, 258 La. 273, 246 So.2d 12 (1971). The granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. La. Code Crim.P. art. 712; State v. Adams, 347 So.2d 195 (La.1977).

In State v. Anthony, supra, this court was confronted with a situation closely analogous to the one that confronts us in the instant case. In Anthony, defendant, on the day of trial, filed a motion for continuance in order that he might have retained counsel try his case rather than court-appointed counsel. In holding that the trail judge’s denial of defendant’s motion for a continuance was correct, we isolated the factors pertinent to our conclusion:

. . .(1) The alleged retained attorney neither appeared in court to verify his retention, nor communicated with the trial judge in any other way; (2) the record reflects only defendant’s statement that a third party had contacted and retained the attorney and that defendant had only had a telephone conversation with the attorney; (3) appointed counsel had filed a prior motion on the same ground regarding another alleged retained counsel; (4) the motion was made on the morning of trial; and (5) the alleged retained counsel neither made an appearance nor contacted the court either during the trial or on the Motion for New Trial.

A careful review of the record convinces us that the factors that led this court to hold that the trial judge’s denial of defendant’s motion for a continuance was proper in Anthony are also present in the instant case.

Defendant testified that he wanted to retain Robert Jacques as counsel to represent him. Defendant’s appointed counsel stated that arrangements for Jacques to represent defendant at trial had been made by defendant’s father. These arrangements, however, were not conducted with Jacques, but rather were conducted between defendant’s father and Jacques’ law partner. Neither defendant’s father, Jacques, nor Jacques’ law partner testified at the hearing below to substantiate the allegations of these arrangements. We further note that Jacques neither made an appearance nor contacted the court during the course of the trial. In fact, at the hearing on defendant’s motion for a new trial, defendant was represented by retained counsel other than Jacques. We thus conclude, as did the trial judge, that the record presents an insufficient degree of substantiation of the alleged arrangements for retained counsel. Moreover, we find that defendant had ample time prior to the morning of trial to seek retained counsel and to notify the trial judge of this intention.

At the hearing on the motion for a continuance, the trial judge found that appointed counsel, Ms. Chrisco, had prepared for trial that day. An attorney, Thomas P. Quirk, in the same law office of appointed counsel was enrolled as co-counsel with Ms. Chrisco and actively participated in the entirety of the trial. Defendant offers no evidence of incompetence or unpreparedness on the part of appointed counsel nor of any prejudice suffered by him from appointed counsel’s representation at trial.

Accordingly, we find that the trial judge did not abuse his discretion in denying defendant’s motion for a continuance. La. Code Crim.P. art. 712; State v. Austin, supra.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in overruling his objection to an alleged prejudicial statement of evidence not in the record made by the prosecutor in closing argument.

The record reflects the following facts. Joseph Edwards, cashier of the Shop-Rite store and victim of the robbery, testified that the person who robbed him at the store was a black male who wore a tee shirt with the word “Schlitz” written on the front of the shirt and a woman’s stocking pulled over his face. Despite this effort at concealment, Edwards stated that he immediately recognized defendant as the robber from the tone of his voice because they had attended the same high school and both had participated in the high school band. Edwards made in-court physical and voice identifications of defendant as the individual who robbed him.

Daniel Kirt testified that he spent the afternoon preceding the robbery with defendant. Kirt and defendant went to the Club Catalina where they remained for a short period of time. Kirk stated that he left the Club Catalina with defendant in a Grand Prix automobile owned by a friend of his who had been with them at the club. Kirt then dropped defendant off at another club called the Fine Fox, located across Highway 14 from the Shop-Rite store while he, Kirt, proceeded to drive to his sister-in-law’s house. As his sister-in-law was not at home, Kirt returned to the Fine Fox in an effort to find defendant. Unable to locate defendant, Kirt drove across the street to the Shop-Rite store to buy gas. The cashier informed Kirt that he could not sell him any gas because there had just been a robbery. Kirt returned to his car and left the Shop-Rite store, driving down the side street adjacent to the Shop-Rite store. Approximately two or three blocks away from the store, he recognized defendant walking along the side of the street. Kirt testified that, when he picked up defendant, defendant was wearing a tee shirt with the word “Schlitz” written across the front. Defendant and Kirt drove to defendant’s house where defendant changed clothes. Shortly thereafter, the police arrived and arrested defendant. Kirt stated that defendant was wearing a “buttoned up” shirt at the time.

During the state’s closing argument, the prosecutor stated that Kirt had testified that, when he left the Club Catalina, defendant was wearing a tee shirt with “Schlitz” written across the front. Defense counsel objected to this statement on the basis that such testimony was not in evidence. The trial judge overruled the objection, adding that it was within the sole province of the jury what the testimony has been and what it has not been.

La.Code Crim.P. art. 774 provides that the argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. It is well settled that before a verdict will be overturned on the basis of improper argument, this court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Berain, 360 So.2d 822 (La.1978); State v. Crumholt, 357 So.2d 526 (La.1978); State v. Davis, 353 So.2d 275 (La.1977).

In the instant case, Kirt testified that defendant was wearing a tee shirt with “Schlitz” written across the front when he picked up defendant after defendant had left the Club Catalina as defendant was walking along the side of the street. Arguably, the prosecutor’s statement in closing argument was a permissible conclusion that could be drawn from Kirt’s testimony. See State v. Johnson, 310 So.2d 600 (La.1975); State v. Webb, 307 So.2d 582 (La.1975). Nevertheless, even if the prosecutor’s remark misstated Kirt’s testimony, we do not consider, under the circumstances here presented, that the statement influenced the jury and contributed to the verdict. Edwards, victim, testified that the armed robber was wearing a tee shirt with the word “Schlitz” written across the front during the robbery. Kirt’s testimony placed defendant in a tee shirt similar to that worn by the armed robber immediately after the robbery. This testimony alone was damaging to the defense. In addition, Edwards stated that he recognized defendant as the robber during the commission of the crime on the basis of past acquaintance. Edwards also made positive in-court physical and voice identifications of defendant as the robber. Moreover, the trial judge, in overruling defendant’s objection to the prosecutor’s statement, admonished the jury that it was within its sole province to determine what the testimony had been and what it had not been. The trial judge in his charge to the jury added that statements made by an attorney at any time during the trial did not constitute evidence or proof of facts.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in finding him to be an habitual offender under La.R.S. 15:529.1 (Habitual Offender Law). He argues that the state did not provide adequate proof of his prior convictions and of his identity as the same person who was convicted of those offenses. This contention is based on defense objections overruled by the trial judge to the introduction of certain evidence during the habitual offender hearing and to the ruling of the trial judge that sufficient proof had been adduced to find defendant to be an habitual offender. In brief, defendant also contends that the Habitual Offender Law is unconstitutionally vague and provides for the imposition of cruel and unusual punishment because of its vagueness. These contentions constitute attacks on the facial constitutionality of La.R.S. 15:529.1.

After being informed by the trial judge of the allegations contained in the information, defendant chose to remain silent. After a hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve fifty years at hard labor without benefit of parole, probation or suspension of sentence.

To prove defendant’s conviction in 1970 of simple burglary, the state introduced certified copies of the bill of information charging Anthony Lee with simple burglary; minutes of court (dated September 9, 1970) showing that Anthony Lee pled guilty to the charge; minutes of court (dated September 30, 1970) showing that Anthony Lee was sentenced to serve four years at hard labor, which sentence was suspended and Lee was placed on probation for a period of four years.

To prove defendant was the same person who was convicted in 1970 of simple burglary, the attorney who represented Anthony Lee in connection with the prior burglary conviction testified that defendant herein was the same person whom he had represented on the simple burglary charge and who had pled guilty to it.

To prove defendant’s conviction in 1971 of simple burglary, the state introduced certified copies of the bill of information charging Anthony Lee with simple burglary; verdict form of the jury signed by the trial judge and foreman of the jury indicating that Anthony Lee was found guilty on the charge of simple burglary (dated October 22, 1971); minutes of court (dated November 5, 1971) showing that Anthony Lee was sentenced to serve two years at hard labor to run consecutively with the sentence imposed in connection with Lee’s 1970 burglary conviction in the event probation was revoked in said case; minutes of court (dated May 31, 1972) indicating that Anthony Lee’s probation in connection with the sentence for the 1970 burglary conviction was revoked, suspension of sentence set aside, and Lee was ordered to serve the sentence (four years at hard labor) originally imposed.

To prove defendant was the same person who was convicted in 1971 of simple burglary, a deputy clerk of court who was present throughout the 1971 trial testified that defendant herein was the same person who was tried and convicted of the prior burglary charge. A probation officer testified that defendant herein was the same person whose probation (ordered in connection with the sentence for the 1970 burglary conviction) was revoked as a result of the 1971 simple burglary conviction.

The state also introduced the entire record of defendant’s trial on the instant charge of armed robbery. The trial judge took judicial notice of the fact that defendant was the same person who had been convicted of armed robbery in his court approximately five weeks previously.

La.R.S. 15:529.1 requires proof of an accused’s alleged prior felony conviction as well as his alleged identity. Moreover, the burden of proof rests with the state when an accused denies the allegations of the information or refuses to answer or remains silent. While La.R.S. 15:529.1 permits the establishment of prima facie proof of a prior felony conviction by compliance with subsection F, necessary facts which permit enhanced punishment may also or instead be proved by other competent evidence. State v. Curtis, 338 So.2d 662 (La.1976). In the instant case, defendant’s prior felony convictions were established by the certified copies of the bills of information, minutes of court and jury verdict reflecting defendant’s convictions and sentences for the crimes charged. Such evidence established sufficient proof of defendant’s prior felony convictions.

Once the state establishes a prior felony conviction, then it must offer proof that the accused is the same person who was convicted of the prior felony. State v. Curtis, supra. In Curtis, we stated:

Various methods of proof to establish identity have been recognized. We do not consider that identity of name of defendant and the person previously convicted is sufficient evidence of identity. Identification of the accused may be by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those in the prison record introduced, or by photographs contained in the duly authenticated record, [footnote omitted] (emphasis added)

In the instant case, the attorney who represented defendant in connection with the 1970 charge of simple burglary testified that defendant was the same person whom he had represented and who had pled guilty to the charge. See State v. Bennett, 357 So.2d 1136 (La.1978); State v. Hayes, 324 So.2d 421 (La.1975). To establish that defendant was the same person who was convicted in 1971 of simple burglary, the deputy clerk of court testified that defendant was the same person who had been tried and convicted on that previous charge. The trial judge took judicial notice of the fact that defendant was the same person whose conviction for armed robbery in his court served as the basic conviction for which the enhanced sentence was being imposed. See State v. Jones, 332 So.2d 461 (La.1976).

Defendant offered no evidence to the contrary. Accordingly, we conclude that there was sufficient evidence to establish that defendant was the same person who had been convicted of the prior felonies. In sum, the trial judge correctly found defendant to be an habitual offender.

Defendant also contends that the Habitual Offender Law is unconstitutionally vague and provides for the imposition of cruel and unusual punishment because of its vagueness. We have previously held that La.R.S. 15:529.1 is not vague or ambiguous. State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). We have, in addition, repeatedly upheld the constitutionality of the statute against attacks contending that it violated the prohibition against cruel and unusual punishment. State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977); State v. Williams, 326 So.2d 815 (La.1976). Hence, there is no substance to these contentions.

Assignment of Error No. 10 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 3, 4, 6, 7, 8, 9, 11 and 12. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.Code Crim.P. art. 722 provides:
      Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confessions or incul-patory statements made by a codefendant and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.

      . La.Code Crim.P. art. 729.3 provides:
      If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection tinder the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

      . Since these attacks are leveled at the constitutionality of the statute on its face, neither objection nor compliance with the assignment of errors procedure were necessary. State v. Williams, 322 So.2d 177 (La.1975); cf. State v. Chenier, 343 So.2d 177 (La.1977).

      . Subsection F of La.R.S. 15:529.1 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.


source: Caselaw Access Project

author: SANDERS, Chief Justice. TATE, Justice,

license: Public Domain

text:
    MARTIN LEBRETON INSURANCE AGENCY v. Mrs. Sara PHILLIPS, wife of/and Lewis Ray Lamastus, Metro, Inc. and Lucy Reid Rausch, Clerk of Court.
    No. 62351.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Robert J. Oster, Edmund T. Wegener, Jr., Stephen F. Babin, Gauche, Wegener & Oster, New Orleans, for plaintiff-applicant.
    Conrad Meyer, III, Robert R. Rainold, Jr., Baldwin & Haspel, New Orleans, Julian J. Rodrigue, Rodrigue & Pierson, Covington, for defendants-respondents.
   SANDERS, Chief Justice.

The plaintiff, Martin Lebreton Insurance Agency, brought suit to revoke a dation en paiement from Mr. and Mrs. Lewis Ray Lamastus to Metro, Inc. The district court, finding that the donors were solvent and that the dation did not prejudice the plaintiff, rejected the demand. The Court of Appeal affirmed, finding that the donors were insolvent but that the plaintiff had failed to establish that it was prejudiced by this dation. 357 So.2d 883. On application of plaintiff, we granted a writ to review that decision. 359 So.2d 632.

Mr. and Mrs. Lamastus were owners of approximately eighty acres of land in St. Tammany Parish known as Saray Beach Marina. They were indebted to Metro, Inc. for $257,442.52, secured by a mortgage on this property. The Lamastuses also owed $56,207.47 to other creditors holding mortgages upon this land. Metro, Inc. sought to liquidate the indebtedness owed it. After securing releases from the other mortgage creditors, Metro, Inc. and the Lamastuses entered into a dation en paiement on February 24, 1977. The dation recited $257,-442.52 as the consideration for the transfer.

On February 11, 1977, Mr. Lamastus executed a promissory note for $30,000.00, secured by a collateral mortgage on the Saray Beach Marina for insurance premiums due to the Martin Lebreton Insurance Agency. The agency did not record this mortgage until March 24, 1977, approximately four weeks after the dation en paiement. The Insurance Agency then filed this revocatory action to annul the dation.

Article 1970 of the Louisiana Civil Code, dealing with the revocatory action, provides:

“The law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors where there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.” Article 2658 provides:
“This difference gives rise to another in the effect of these contracts, in cases of the insolvency of the debtor. He may, although insolvent, lawfully sell for the price which is paid to him; but the law forbids to give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due.”

Both lower courts found that the subject property had a value of $303,500.00. The total mortgage indebtedness, exclusive of that of the plaintiff, aggregated $313,-649.99. The record discloses that the property was the subject of a sheriff’s sale on October 27, 1976. The minimum bid was fixed at $295,877.00; no bids were submitted. Hence, we find no reason in the record to disturb the finding of insolvency.

Insolvency alone, however, is an insufficient basis for revoking a dation en paiement. The law requires prejudice, or injury, to the complaining creditor. LSA-C.C. Arts. 1978, 2658; Harman v. Defatta, 182 La. 463, 162 So. 44 (1935); Deposit Guaranty National Bank v. Shipp, La.App., 232 So.2d 810 (1970).

Under Article 1977, the effect of a judgment of revocation is that the contract is avoided as to the complaining creditor and the property is applied to the payment of the judgment of that creditor. See Zuberbier & Behan v. Morse, 36 La.Ann. 970 (1884). Hence, the law contemplates a present injury as distinguished from one that may occur in the future. Feist v. Willer & Gamm, 16 La.App. 618, 133 So. 797 (1931).

In Feist v. Willer & Gamm, supra, the Court of Appeal stated:

“The revocatory action, we think, is given to individual creditors in contemplation that they have or will proceed under their judgments against the property of the debtor (article 1972, Civ.Code; N. O. Credit Men’s Ass’n v. Cattana et al., 145 La. 330, 82 So. 289), and that when the action sought to be revoked is merely a preference, such preference must relate to property which is subject to execution under their judgments and not to property which may become subject to execution in the near or distant future (see Alexandria v. Police Jury, 139 La. 635, 71 So. 928, Ann.Cas. 1918A, 362).”

In the present case, the Saray Beach Marina is not the common pledge of all the creditors, because some of the creditors, including the transferee, hold mortgages on the property, giving them “lawful causes of preference.” LSA-C.C. Art. 3183. Since plaintiff’s mortgage was unrecorded at the time of the transfer, it concedes that it has only the status of an unsecured creditor in this litigation.

Here, the debtors made the dation to a secured creditor. Evidence relevant to the plaintiff’s prejudice was offered in the trial court. We think, as did the Court of Appeal, that the evidence is adequate to resolve the prejudice issue.

The test for determining prejudice is a factual one, based on the value of the property and the ranking of the indebtedness. The creditors enumerated in the mortgage certificate retain precedence over the Martin Lebreton Insurance Agency. See Succession of Cottingham, 29 La.Ann. 669 (1877). These preferred claims amount to $313,649.99, more than the value of the ceded property, leaving nothing for the unsecured plaintiff. Hence, we conclude that the record negates the claim of injury. Jackson v. Miller, 32 La.Ann. 432 (1880); Deposit Guaranty National Bank v. Shipp, supra.

The plaintiff cites Quality Finance Co. of Donaldsonville v. Bourque, La., 315 So.2d 656 (1975) in support of its contention that prejudice to the complaining creditor is not an essential basis for the revocatory action. This decision is inapposite. The narrow issue before the court there was whether a transferee of property in a dation en paiement from its mortgage debtor was entitled to have inferior mortgages and liens can-celled. This Court held that it was not.

For the reasons assigned, the judgment of the Court of Appeal dismissing the plaintiff’s suit is affirmed.

TATE, J., dissents and assigns reasons.

TATE, Justice,

dissenting.

I respectfully dissent.

Under the findings of the majority, the mortgaged property had a value of $303,-500. The secured creditor (Metro) obtained this property from the debtor by a dation en paiement to discharge a debt owed it in the amount of $257,442.52. (It secured releases as to inferior secured creditors owed $56,207.47 by Lamastus, secured by mortgages on the property.)

Under these findings, a secured creditor acquired the mortgaged property from the insolvent debtor for less than its true value, receiving a surplus value of some $46,000 above the amount of its debt. The other creditors of Lamastus were thus deprived of this value of his assets otherwise available to pay his debts. Although insolvent, the debtor was not bankrupt; and, after exhaustion of the claims of the secured creditors to the extent of this $46,000, the assets of his estate would otherwise be available for distribution to his remaining unsecured creditors. By not using this excess value to discharge some of the inferior secured creditor’s claims, the remainder of the debtor’s assets after transfer of the mortgaged property was diminished insofar as the pro rata claim of payment available to each of the remaining unsecured creditors.

The superior creditor who obtained the mortgaged property for less than its true value thus obtained an unfair preference over the other creditors. The conduct constitutes, under the facts found, a constructive fraud against the rights of the other creditors. La.Civ.C. art. 1983. As provided by La.Civ.C. art. 1984: “Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives the obligee, if he be a creditor, an advantage over other creditors of the obligor.” A preference is unfair and a constructive fraud “where the creditor knew that the debtor was in insolvent circumstances and the transaction gives the creditor any advantage over other creditors.” Bank of Patterson v. Urban Co., 114 La. 788, 38 So. 561, 563 (1905). See Swift & Co. v. Bonvillain, 139 La. 558, 71 So. 849 (1916); American Steel Building Co. v. Brezner, 158 So.2d 623 (La.App. 3rd Cir. 1963).

The prejudice sustained by the plaintiff unsecured creditor was thus the diversion of some of the debtor’s assets (the surplus value of the transferred property over the debt secured by it) to the preference of the senior secured creditor, which thus diminished by the extent of this preference the net entire amount of the debtor’s assets available to all the other creditors. These include not only those secured by mortgages on the property acquired by the preferred creditor (who will become unsecured creditors for the balance due them, since the mortgaged property securing their debt has been transferred). Due to the preference thus obtained by the secured creditor with the first mortgage, the other unsecured creditors (such as the plaintiff and, now, the other previously-secured creditors) will each receive a lesser net share in any pro rata distribution of the debtor’s remaining assets. Because of the preference, the amount of the remaining debts is greater (since the surplus value of $46,000 was not used to reduce them), to be satisfied out of the debtor’s assets remaining after transfer of the property. Stated another way, the debtor’s estate available for the payment of his other creditors is diminished by the $46,-000 value received by the preferred secured creditor in excess of the actual debt owed him.

I recognize that the preferred creditor did not proceed to secure a dation en paiement with any intent to commit a constructive fraud upon the other creditors, and that it probably did not realize that the value of the property obtained by it was so much in excess of the debt owed it as found by the majority and the previous courts. However, as the jurisprudence cited indicates, its actual good faith is immaterial, when it received in fact an unfair preference by obtaining property for less than its value and by thus depriving the other creditors of this asset to the extent of the unfair preference.

      . Although the debtors were made defendants in this action, the plaintiff did not secure a judgment against the debtors. The absence of the judgment, we think, would bar a revocation judgment in this Court. LSA-C.C. Art. 1972; Block v. Marks, 47 La.Ann. 107, 16 So. 649 (1895); Williams v. Miller, La.App., 180 So. 140 (1938). However, since the debtors are parties to the litigation, we prefer to base our decision on other grounds.

      . A different rule as to proof of prejudice may apply when the dation is to an unsecured creditor and the dation is attacked by another creditor of at least equal status. See Southland Inv. Co. v. Michel, La.App., 149 So. 177 (1933); 8 Tul.L.Rev. 277.

      . Civil Code Article 3183 provides: “The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference.”
      See also Civil Code Article 3182: “Whoever has bound himself personally, is obliged to fulfill his engagements out of all his property, movable and immovable, present and future.”


author: MARCUS, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Roy E. GORDON.
    No. 62372.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.
    Piper & Brown, Frank E. Brown, Jr., Shreveport, for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Roy E. Gordon was charged by bill of information with the crime of forgery in violation of La.R.S. 14:72. The trial judge accepted defendant’s guilty plea to the crime charged at arraignment. Subsequently, defendant was sentenced to serve three years at hard labor. Defendant objected to the sentence at the time it was imposed and orally moved for an appeal. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in sentencing him to three years at hard labor. He argues that the sentence imposed inflicts cruel, excessive, or unusual punishment in violation of La. Const, art. 1, § 20. Defendant also argues that the trial judge erred in failing to state adequately his reasons for imposition of the sentence as required by La.Code Crim.P. art. 894.1.

Defendant occupied a position of trust with his employer. He devised and engaged in a scheme whereby he issued weekly payroll checks to two fictitious employees in the aggregate sum of $15,333.38. After defendant pled guilty at arraignment, the court ordered a pre-sentence investigation; a pre-sentence report was furnished to the trial judge prior to sentencing. Defense counsel showed that defendant was a first offender and that he had made full restitution of the money stolen pursuant to a plea bargain. Defendant also submitted to the trial judge letters from citizens commending his character in general.

La.Const. art. 1, § 20 provides in pertinent part that “[n]o law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. . .” (emphasis added) Some of the members of this court, including the author of this opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases. State v. Progue, 350 So.2d 1181 (La.1977).

However, we need not resolve this issue in the present case for, under either interpretation of the constitutional provision, the sentence imposed here is not excessive. The maximum sentence for the crime of forgery is ten years at hard labor plus a fine of $5,000.00. La.R.S. 14:72. Through a carefully planned scheme of forgery, defendant stole a substantial amount of money from his employer. In view of the seriousness of this particular offense and defendant’s violation of a position of trust, we conclude that imposition of the sentence of three years at hard labor is not excessive.

Next, defendant contends the trial judge erred in failing to state adequately his reasons for imposition of the sentence as required by La.Code Crim.P. art. 894.1. That article states that where a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if one or more of the listed conditions are met. The new statute also enumerates various grounds which, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation. It is further provided that the “court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978). We have reviewed the reasons advanced for imposition of this sentence and conclude that the trial judge adequately complied with La.Code Crim.P. art. 894.1.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

DENNIS, J.,

dissents, being of the opinion that the sentencing reasons were insufficient to distinguish this from any other forgery case.


author: PER CURIAM.

text:
    STATE of Louisiana v. T. L. WILLIAMS, Jr.
    No. 62748.
    Supreme Court of Louisiana.
    Nov. 22, 1978.
    Rehearing Denied Dec. 14, 1978.
    Bobby L. Culpepper, Jonesboro, J. Michael McDonald, Parmerville, Baker, Cul-pepper & Brunson, Jonesboro, for defendant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., for plaintiff.
   PER CURIAM.

Affirmed.

CALOGERO, J., dissents.

CALOGERO and TATE, JJ., would grant a rehearing.


text:
    Pamela M. CHANCELLOR, wife of/and William L. Chancellor v. SCHWEGMANN BROS. GIANT SUPER MARKETS, INC.
    No. 63262.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Pamela M. Chancellor, wife of /and William L. Chancellor applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson.

Writ denied.


text:
    Agostino MANTIA v. JAZZ CITY, INC.
    No. 63322.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Jazz City, Inc. applying for supervisory and remedial writs and stay order. Parish of Orleans. 364 So.2d 272.

Writ denied.


text:
    Leighton LOTT v. T. J. HALEY, M. D., J. Ray McDermott Company, Aetna Casualty & Surety Company.
    No. 63327.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Leighton Lott applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1270.

Writ granted.

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.


author: DIXON and DENNIS, JJ.,

text:
    STATE of Louisiana v. Doyle Alan SANDIFER and Leslie Wayne West.
    No. 63464.
    Supreme Court of Louisiana.
    Nov. 22, 1978.
   In re: Doyle Alan Sandifer and Leslie Wayne West, applying for writs of certiora-ri, prohibition, mandamus and for a stay order. Parish of Ouachita.

Writ denied. Adequate remedy for review in the event of conviction.

DIXON and DENNIS, JJ.,

concur in the denial because the showing made does not warrant the exercise of our jurisdiction at this stage of the proceedings.


text:
    Anthony SCHOENENBERGER v. Patricia VON DAMECK and Henry Taylor, as Co-Administrators of the Succession of Louis A. Cayer, M. D., and St. Paul Fire & Marine Ins. Co.
    No. 63480.
    Supreme Court of Louisiana.
    Nov. 24, 1978.
   In re: Anthony A. Schoenenberger applying for writs of prohibition, certiorari, mandamus and stay order. Parish of Rapides.

Writ granted in part, denied in part: Unless trial court permits filing of amending and supplemental petition, and an amendment of the pre-trial order to permit relator to call the additional witnesses, the continuance is granted. Other contentions show no abuse of discretion.


text:
    STATE of Louisiana v. Mark Anthony BROWN.
    No. 63489.
    Supreme Court of Louisiana.
    Nov. 28, 1978.
   In re: Mark Anthony Brown, applying for remedial writs. Parish of Orleans.

Writ denied. On the showing made there is insufficient basis for the exercise of our supervisory jurisdiction.

DIXON, J., would grant the writ.


text:
    Anthony A. SCHOENENBERGER v. Patricia VON DAMECK and Henry Taylor, as Co-Administrators of the Succession of Louis A. Cayer, M. D., and St. Paul Fire and Marine Ins. Co.
    No. 63493.
    Supreme Court of Louisiana.
    Nov. 28, 1978.
   In re: Anthony A. Schoenenberger, applying for writs of prohibition, certiorari, mandamus and for stay order. Parish of Rapides.

Writ granted. Continuance ordered.


text:
    STATE of Louisiana v. Gary HAUSER.
    No. 63468.
    Supreme Court of Louisiana.
    Nov. 28, 1978.
   In re: Gary Hauser applying for remedial writ. Parish of Orleans.

Writ granted. Considering relator’s application, the applicable law and the state’s expressed non-opposition to release of applicant, relator-applicant is hereby ordered released forthwith.


author: LOTTINGER, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY v. RESERVE INSURANCE COMPANY.
    No. 12219.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.

      Francis X. Neuner, Jr., Lafayette, of counsel, for plaintiff-appellee Travelers In-dem. Co.
    William A. Porteous, III, New Orleans, of counsel, for defendant-appellant Reserve Ins. Co.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an appeal by Reserve Insurance Company (Reserve) from a declaratory judgment decreeing it liable under an excess insurance policy for certain interest on a judgment. Reserve also appeals the judgment making the declaratory judgment ex-ecutory.

The trial judge in his written reasons for judgment made the following finding of facts:

“In August of 1972 judgment in the amount of $134,000.00, plus seven percent interest thereon from date of judicial demand, was rendered against Baker Oil Tools, Inc. by the United States District Court for the Western District of Louisiana. The action was brought by one James Allen Mouton against Baker and The Travelers Insurance Company. Baker was insured by Travelers up to $50,-000.00 and by Reserve Insurance Company under an excess liability policy limited to the difference between $1,000,000.00 and Travelers’ underlying limits. Pursuant to the judgment Travelers paid its $50,000.00 policy limits plus the interest which accrued on that amount from date of judicial demand. Additionally, Travelers paid the interest which accrued on the excess judgment of $84,000.00 from date of its signing pursuant to its interpretation of the terms of its policy agreement with Baker. Reserve paid the excess principal of $84,000.00 but refused to pay any interest whatsoever claiming that its policy excluded liability for interest due. “To prevent a seizure of the property of Baker to satisfy the remainder of the interest due, Travelers later paid an additional $11,152.60 representing the interest from date of judicial demand until judgment on the $84,000.00 portion of the judgment. Travelers and Reserve now seek a declaratory judgment decreeing which of the two is actually liable for this disputed amount of interest on the 1972 judgment.”

In filing peremptory exceptions of no right and no cause of action, and nonjoinder of an indispensable party, Reserve argues that the Travelers Insurance Company (Travelers) had no right or cause of action since Reserve did not have a contract with Travelers nor is any debt due Travelers, and if any debt is owed it is due Baker Oil Tools, the insured, an indispensable party who must be joined before the case can be adjudicated.

The record reveals that Travelers, without waiving any rights, paid the disputed interest on the excess portion of the judgment against the insured. This court finds that Travelers has a cause of action for the amount it paid, LSA-C.C. 2134 and Standard Motor Car Co. v. State Farm Mutual Automobile Insurance Company, 97 So.2d 435 (La.App. 1st Cir. 1957), and has a right of action under LSA-C.C.P. art. 1872 to request the determination of the rights of the subrogee-insured under the excess policy issued by Reserve.

Additionally, we concur with the trial court’s conclusion that Baker was not an indispensable party. An indispensable party is one whose rights are directly affected by the judicial determinations made in the suit. LSA-C.C.P. art. 641, State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671 (La.1973). In Lamar, supra, Justice Tate extensively examines the procedural and substantive effects of labeling a party indispensable. He reasons that “parties should be deemed indispensable only when that result is absolutely necessary to protect substantial rights.”

It is clear, as Justice Tate points out, that emphasis in the determination of the classification is whether the absent party has any substantive rights which would be affected by the adjudication. Under the fact situation presented in our case, no substantive rights of Baker would be affected by either a favorable or unfavorable ruling against Reserve.

Reserve next appeals from the finding by the trial judge that it was liable under the excess policy for the interest. We find no error in the ruling of the trial court and adopt as our own its reasons for judgment, to wit:

“Travelers’ policy provides as follows with regard to interest liability:
‘The company will pay, in addition to the applicable limit of liability:
(a) all expenses incurred by the company, all costs taxed against the insured in any suit defended by the company, and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon; ’

This policy provision, Travelers argues, limits its interest liability to the original amount it paid, that is:

interest on policy limits
from the date of judicial demand until paid, and
interest on the excess judgment
from date of entry or signing until policy limits are paid.

In support of its argument that this view of the clause is in accord with Louisiana’s law, Travelers cites a line of jurisprudence, beginning with Doty v. Central Mutual Ins. Co., 186 So.2d 328 (3rd Cir. 1966), writ ref. [249 La. 486], 187 So.2d 451 (1966), in which such limitations on an insurer’s interest liability were upheld. All the cases cited involved judgments in excess of the insurer’s policy limits but none dealt with the question of liability for the remaining interest due, i. e., the interest due on the excess amount from date of judicial demand until date of judgment.

“Responding to Travelers’ argument that its liability is so limited, Reserve cites two Supreme Court cases to the effect that an insurer’s attempt to limit its interest liability contravenes law and public policy and so cannot be upheld. In LeBlanc v. New Amsterdam Casualty Co. [202 La. 857], 13 So.2d 245 (1943), the court considered a clause limiting the insurer’s liability to interest accruing from date of judgment only. Interest was awarded in that case from date of judicial demand; the court used the following reasoning:
‘. . . Where a policy of insurance provides for interest at a lesser rate, or for a shorter term, than the law fixes, it is in contravention of law. Therefore, since Act 206 of 1916 provides that interest shall run from date of judicial demand, that statute should prevail. The language of the statute is mandatory and declares that all judgments shall bear interest from date of judicial demand, and this is true though the litigant does not demand it, or the judgment so provides.’

The same reasoning was utilized in the subsequent case, Soprano v. State Farm Mutual Automobile Ins. Co. [246 La. 524], 165 So.2d 308 (1964). In neither case, however, did the judgment exceed the policy limits involved.

“Dicta in a still later Third Circuit case, Terro v. State Farm Mutual Automobile Ins. Co., 169 So.2d 417 (La.App. 3rd Cir. 1964), where the judgment did exceed the applicable policy limits, lends some support to Reserve’s contention that Travelers cannot limit its liability for interest. The issue in that case was whether an insurer which paid its policy limits unconditionally before judgment could be required to pay any interest on the excess award under an interest clause similar to Travelers’ provision. In holding the insurer free of any liability for interest on the excess amount the Court, Tate, Savoy and Culpepper, JJ., with Tate as author, discussed the previously cited cases:
‘The plaintiffs also rely upon Louisiana jurisprudence which holds that a liability insurer is liable for interest from date of demand on amounts awarded up to policy limits, even though provisions of the policy attempt to limit the insurer’s liability to interest from date of judgment. Soprano v. State Farm Mut. Auto. Ins. Co., 246 La. 524, 165 So.2d 308; LeBlanc v. New Amsterdam Cas. Co., 202 La. 857, 13 So.2d 245. The basis of these decisions is that such policy provisions must yield to the Louisiana enactment providing that legal interest in tort actions shall attach from date of demand, LSA-R.S. 13:4203. Such jurisprudence might possibly support an argument that the insurer is liable for interest upon the entire amount of the ultimate judgment, from date of demand up until the time of its unconditional tender or payment of policy limits; but it has no application here, where, prior to judicial demand, the insured unconditionally tendered into court its full policy limits.’ (Emphasis added.)

This dicta is apparently the only indication in our jurisprudence that a primary insurer would be held for all the interest due on an entire judgment which exceeded its policy limits.

“The cases previously alluded to which were cited by Travelers are clearly contrary to the dicta in Terro. The Doty case, the first in the line of jurisprudence on the issue, itself cites the Soprano and LeBlanc decisions but distinguishes them as addressing different policy considerations because they concern different fact situations. Coming some eighteen months after Terro, the Third Circuit, again with Tate, Savoy and Culpepper comprising the original panel, but sitting en banc on the application for rehearing, issued a per curiam in Doty stating:
‘The decisions so holding [Soprano and LeBlanc] concern only whether the insurer or its insured shall pay the legal interest upon an award up to the policy limits. In the decisions on the issue, to allow interest upon the principal awarded would make the company liable for more than its stated policy limits; the question was whether the insured or the insurer should pay legal interest from judicial demand, as required by Louisiana law, upon the principal of a judgment which awarded an injured person the policy limits.
‘Despite the broad language quoted, we can interpret the decisions under their facts as merely a holding by our Supreme Court that, reading the policy in conjunction with Louisiana law, the agreement by the insurer to pay its policy limits plus interest would in such instances be nugatory if construed so as to require the policyholder to pay the interest required by Louisiana law; for thus his insurer would pay its policy limits less legal interest from judicial demand. This reasoning is not as relevant as to any portion of a judgment in excess of policy limits.
‘By its supplementary payments clause agreeing to pay interest upon the entire amount of a judgment in excess of policy limits, the insurer intended to provide supplementary protection to its insured over the principal amount plus legal interest thereupon covered by its policy. As the decisions and treated sources above-cited show, however, the intended purpose was merely to pay for interest for which the insured person would otherwise be liable, where (following the judgment) that person’s liability for subsequent interest is occasioned by the insurer’s unilateral determination to appeal subsequent to the judgment, within the company’s sole control under pertinent policy provisions.
‘The company’s agreement to pay this supplementary interest cannot, within the clear policy intent, be extended to cover legal interest upon the excess awarded from the date of judicial demand as well as from the rendition of the judgment. This agreement, providing for supplementary interest upon the excess for the purpose of avoiding prejudice to the insured person through appellate delay, is not, in our opinion, in contravention of the Louisiana statute providing for legal interest from date of judicial demand upon tort judgments.
‘When the award is for policy limits or less, a policy provision limiting the company’s liability for that following judgment has, under Louisiana law, the effect of reducing the protection to the insured from the principal amount of coverage to the principal amount less interest. This explains our courts’ holding such a provision in contravention of Louisiana law insofar as sought to be used to limit the insurer’s liability to an amount less than the principal amount insured. The same reasoning does not justify our holding ineffective as insurer’s supplementary agreement to pay, in addition to the principal amount insured plus legal interest thereupon, legal interest upon any excess of policy limits awarded from the date of judgment only rather than from judicial demand.’ (Emphasis added.)
“Subsequent cases also holding that an insurer in Travelers’ position is not liable for interest on the excess judgment from date of demand until date of judgment include Pittman v. Fowler, 191 So.2d 172 (La.App. 3rd Cir. 1966); McCrossen v. Bieszczard, 234 So.2d 763 (La.App. 4th Cir. 1969); Orgeron v. Earl Gibbon Transport, Inc., 235 So.2d 134 (La.App. 4th Cir. 1970); Inabinet v. State Farm Automobile Insurance Co., 262 So.2d 920 (La.App. 1st Cir. 1972). Although none of these cases involved an excess liability carrier as Reserve is here, all the courts upheld the limited interest liability which Travelers seeks as primary insurer. Liability for interest on the excess between demand and judgment apparently fell to the insured in those cases just as the liability for the excess over the policy limits became the insured’s burden.
“Although Travelers has shown that its interest liability should properly be limited to the amount of its original payment, the question remains whether Reserve should bear the remaining interest liability. Reserve asserts that its policy clearly excludes any interest liability whatsoever. Reserve’s policy provides as follows in its ‘Insuring Agreement’:
‘In consideration of the payment of premium stated in the Declarations, the Company agrees to indemnify the Insured, in accordance with the applicable insuring agreements of the Primary Insurance against loss subject to the limits stated in Item 5, Section I of the Declarations and as fully and to all intents and purposes as though the Primary Insurance had been issued for the limits set forth in Item 5, Section III of the Declarations. This policy shall apply only to coverages for which an amount is indicated in Item 5, Section I, and then only in excess of the corresponding amount as indicated in Item 5, Section II of the Declarations.’ (Emphasis added.)

The definitions section further explains the policy terms:

‘1. Loss. The word “loss” shall be understood to mean the sums paid in settlements of losses for which the Insured is liable after making deductions for all other recoveries, salvages and other insurances (other than recoveries under the policy/ies of the Primary Insurer), whether recoverable or not, and shall exclude all expense and costs.
2. Costs. The word “costs” shall be understood to mean interest on judgments, investigations, adjustment and legal expenses (excluding, however, all expense for salaried employees and retained counsel of and all office expense of the Insured).
3. Primary Insurance. The term “primary insurance” shall be understood to mean the policy (policies described in Item 3.)’ (Emphasis added.)

Simply stated, Reserve argues that its policy covers only loss, that loss does not include costs and that interest on a judgment is one of those excluded costs.

“Travelers concedes that merely reading the definition section of the policy does lead to the conclusion that Reserve has no interest liability but argues that the policy must be read as a whole before any interpretation can be attempted. The basis of Travelers’ claim that Reserve does owe interest despite its definitions clause rests on an interpretation of the coverage page which was written for this particular policy. i That endorsement to the policy states that the Reserve limit of liability shall be ‘the difference between $1,000,000.00 . . . and underlying limits ... as set forth in policy . . . issued by The Travelers Insurance Company.’ This clause, argues Travelers, indicates an intent to pay whatever was due above the underlying limits of the Travelers policy. In support of its view that this clause alters the basic policy provision, Travelers quotes the final section of the endorsement: ‘Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions or limitations of the policy to which this endorsement is attached other than as above stated.’ Essentially, Travelers claims that the limit of liability clause can alter the other policy terms and that it did in fact alter the terms relative to interest liability by assuming the full excess over Travelers underlying limits. The conditions clause of the policy stating that, unless otherwise specified, the policy ‘shall follow the primary insurance in all respects’ is quoted as a further indication of Reserve’s intention to assume all liability remaining after Travelers made full payment under its policy terms.
“The several factors attendant to an interpretative analysis of the Reserve excess coverage policy leads this court to the conclusion that Reserve is liable for the $11,-152.60 paid by Travelers and which represents interest on the $84,000.00 excess portion of the judgment from the date of judicial demand until entry of the judgment. These factors are the intent inherent in the nature and purpose of excess coverage; the construction as a whole of the various terms and conditions of the excess coverage policy; the contractual compatibility of the excess coverage policy with the primary coverage policy; and, the ambiguity with respect to the meaning of ‘interest on judgments’ found in the definitional treatment of ‘costs’ for which liability is excluded by the excess policy.
“This controversy between the two insuring companies places the insured in the untenable position of having purchased coverage for protection up to the sum of $1,000,-000.00 and then being exposed to an arguable hiatus in coverage (a segment of decreed interest) which could result in loss to the insured well below the stated policy limits. It is true that the judgment creditor has been paid and while one can only surmise that there will be no attempt to recover the sum from the insured, our law does permit the recovery of money paid in error. The thrust of this litigation does not suggest that Travelers and Reserve believe that there is no coverage whatever for the disputed interest payment. Each seeks to have the liability declared to be that of the other. As between the two companies, it is logical that all parties intended that total protection be afforded by the excess policy up to the sum of $1,000,000.00. As the excess carrier, it was incumbent upon Reserve to fully understand the limitations of coverage in the primary policy. There were adequate jurisprudential guidelines in our law to apprise Reserve of the limitation on Travelers’ liability for interest on the excess award accruing between demand and judgment. We are satisfied that it was Reserve’s intent and the understanding of both Travelers and Baker that Reserve’s coverage would supplement that of Travelers to afford complete protection against loss up to the limits of $1,000,000.00. If otherwise, the nature and purpose of excess coverage would be nullified.
“We find the position of Travelers as regard the result from a reading of the excess policy as a whole to be well founded. Without again quoting the various provisions of the policy, when construed together, we agree that Reserve’s policy contractually obligates Reserve to pay whatever was due above the underlying limits of Travelers’ policy subject, of course, to the stated limits of $1,000,000.00. The various terms and conditions of the policy are necessarily read within the context of the excess protection sought to be afforded the insured.
“Additionally, because of the fact that both the excess policy and the primary policy contractually offer the insured a composite protection, it is necessary to construe the terms of the excess policy in light of the provisions of the primary policy. This compatibility of interpretation, aside from the joint purpose of the two policies, is mandated by the explicit references in the excess policy to the primary insurance. Not the least of these references are in the naming of the primary carrier, the number of the policy it issued, and the stipulation that the excess policy is generally subject to all conditions, agreements and limitations of and shall follow the primary insurance in all respects.
“Under the above interpretative guidelines it can be said that the exclusionary phrase ‘interest on judgments’ means only the interest accruing on a sum after judgment therefor has been entered. If this is correct, the interest accruing from date of judicial demand until judgment is not excluded from the coverage and is the liability of Reserve. Obviously, this interpretation fits perfectly with the provision of the Travelers’ policy on interest thereby affording the insured with total coverage' for interest accruing from judicial demand upon the excess award. Considering the phrase without regard to the aforesaid interpretative guidelines may reasonably result in the opposite meaning, i. e., that all interest specified in the judgment is excluded from coverage. The least that can be said of the language is that it is ambiguous and, as a matter of law, requires a construction against Reserve and in favor of its insured.
“Though not raised by Travelers, this court is not unmindful of the plausible contention that could be raised to the effect that Reserve’s attempt to limit its interest liability is in contravention of law within the meaning of LSA-R.S. 13:4203 as defined by the LeBlanc and Soprano cases. These cases strike down a policy provision providing for interest at a lesser rate or for a shorter term than fixed by law and it can be argued that the effect of Reserve’s exclusion, as interpreted by Reserve, is likewise in contravention of law and against public policy. However, it is unnecessary to premise the decision in this case upon the basis of R.S. 13:4203, and we do not do so. Were we to attempt to do so, a subsidiary consideration would be raised by a fact alluded to by counsel but not made a part of the evidence in this case.
“Counsel for Reserve asserts in his memorandum that the action giving rise to this dispute was brought under the Outer Continental Shelf Lands Act, 43, U.S.C. 1331-1343. Assuming this to be an established fact, it follows that 28 U.S.C. 1961 is obligatory and controlling. It provides that interest shall be calculated from the date of the entry of judgment, at the rate allowed by State law. R.S. 13:4203 is, therefor, rendered inapplicable. See Berry v. Sladco, Inc., C.A. 1974, 495 F.2d 523, and Oil Chemical and Atomic Workers International Workers Union v. American Cyanamid Corp., 546 F.2d 1144 (5th Cir. 1977). Under this view, Reserve’s exclusionary clause as to interest accruing between judicial demand and judgment should not be said to be in contravention of law. It may yet be argued, however, that interest from judicial demand was decreed by the United States District Court; the judgment was not appealed; it became the law of the case; and, under such circumstances, our public policy nullifies an insurance provision excluding liability for such interest. This latter view is not persuasive. While interesting, these academic considerations are discussed only for the sake of complete review of the problem presented to us.” (Emphasis added by the trial judge.)

Lastly, Travelers has answered the appeal seeking an amendment to the judgment making the declaratory judgment ex-ecutory so as to award interest from date of judicial demand, rather than from the date of the judgment.

Reserve argues that a party is entitled to interest from date of judicial demand only in actions ex delicto, citing LSA-R.S. 13:4203 and Davis v. LeBlanc, 149 So.2d 252 (La.App. 3rd Cir. 1963).

A careful reading of the Davis case will reveal that the judgment which did not grant interest from judicial demand had become final and unappealable. After concluding such, the court then discussed whether the suit was one in tort or in contract. If in tort, no mention of interest need be made for LSA-R.S. 13:4203 mandates in actions “ex delicto” interest from date of judicial demand, whether in the judgment or not. The court ultimately concluded that this was a suit in contract, thus denying interest. We find neither Davis v. LeBlanc, supra, nor LSA-R.S. 13:4203 controlling.

LSA-C.C.P. art. 1921 provides:

“The court shall award interest in the judgment as prayed for or as provided by law.”

In the motion seeking supplemental relief to the declaratory judgment, plaintiff prayed for interest from date of judicial demand, January 25, 1978. The language of LSA-C.C.P. art. 1921 is mandatory. We know of no reason why the interest was not awarded from date of judicial demand, thus the judgment of the trial court is amended to provide interest from date of judicial demand, January 25, 1978.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed and amended so as to award interest from the date of judicial demand, at appellant’s costs.

AFFIRMED AND AMENDED.


author: PRICE, Judge.

text:
    Franklin L. ARENDER, Plaintiff-Appellee, v. Max D. WILLIAMS, Defendant-Appellant.
    No. 13649.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    En Banc. Rehearing Denied Dec. 13, 1978.
    John Barkley Knight, Jr., Winnsboro, for defendant-appellant.
    Adcock & Dupree by E. Wade Shows, Baton Rouge, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Franklin L. Arender, a licensed real estate broker, seeks to collect a real estate commission from Max D. Williams in connection with an alleged agreement to sell a 1,765 acre farm owned by Williams in Madison Parish. The trial court awarded plaintiff judgment in the amount of $17,650 together with legal interest from the date of the transaction on which plaintiff’s claim is based. Defendant has appealed contending the trial court erred in finding plaintiff had established by a preponderance of the evidence that the proposed sale negotiated by plaintiff was on the terms agreed to by defendant. Alternatively defendant contends the court erred in ordering the accrual of legal interest prior to date of judicial demand.

We reverse for the reasons assigned.

Plaintiff contends defendant verbally gave him the exclusive right to sell his farm for a commission of $10 per acre on the minimum asking price of $775 per acre and one-half of any amount that the property brought over this price. He contends he negotiated an agreement with the owners of the neighboring farm, referred to as the Marsh brothers, who accepted the offer made to them, and that the sale was not consummated because defendant changed his offer after it had been accepted and subsequently sold the property himself to another party for a higher price.

Defendant admits he gave plaintiff the right to negotiate for a sale of the farm to the Marsh brothers on a commission basis as claimed by plaintiff, but denies that plaintiff offered the farm to these parties on the specific terms authorized by him or that plaintiff was given the exclusive right to sell the property.

The principal dispute herein concerns whether defendant advised plaintiff in their discussion of the proposed terms of a sale that he would require the purchaser to assume or pay the balance owed of approximately $30,000 on a mortgage covering the farm residence over and above the per acre price. The testimony of the parties is diametrically opposed on this issue.

Plaintiff relies principally on the testimony of the several persons who attended a meeting at defendant’s house on the night of October 8, 1975, to further discuss the proposal previously submitted by him to the Marsh brothers. Plaintiff contends that as all of the terms of the proposed sale were discussed on this occasion in the presence of defendant, and as no objection was voiced by him, that he therefore approved the offer submitted on his behalf. Defendant contends he was unaware that plaintiff made an offer which obligated him to pay the residential mortgage out of the sales price and did not hear it discussed on the night in question. He did not discover the mistake in the offer until the next morning when he and plaintiff were reviewing the total consideration. The testimony of those attending the meeting is vague and uncertain as to what was specifically discussed as more than two years elapsed before trial. This evidence does not show with any degree of legal certainty that the mortgage in question was discussed in defendant’s presence on this occasion.

We find it also significant that plaintiff, under cross-examination, admitted he and defendant may have had a misunderstanding. We quote in pertinent part the transcript page 184 as follows:

Q. Was the mortgage on the residence specifically discussed at this meeting?
A. Yes, sir.
Q. As nearly as possible, tell me the exact words that was (sic) said.
A. Let me say this, let me say this. Mr. Williams evidently didn’t understand what assume the mortgage meant when he called me back from Al-burquerque (sic).
Q. You think that . . .
A. Evidently, evidently he thought that I would understand that he meant that they are going to pay it off.
Q. Are you telling me that you think that Max was in error on the night of the meeting?
A. There’s a possibility that he didn’t uh, that he didn’t just specifically know exactly what was said or he didn’t understand it or whatever.

Defendant further offered the testimony of his brother, Jack Williams, and his accountant, W. L. Albritton, with whom he discussed the proposed sale prior to the meeting on October 8. Both corroborated defendant’s position that the residential mortgage was to be paid by purchasers over and above the per acre price of the farm. The testimony of Hershel Sullivan, a realtor who accompanied plaintiff to discuss another proposal with defendant after the Marsh negotiation had terminated, also lends credence to defendant’s position.

The evidence does not show that defendant received a better offer for the property after the meeting on the night of October 8 and sought to back out of the tentative agreement for this reason. He had been advised by Paul Marsh that they no longer were interested in the farm before he had any contact with the ultimate purchaser, John Terral.

We find the evidence insufficient to support the trial judge’s finding that the offer made by plaintiff to the Marsh brothers was on the terms agreed by defendant.

The preponderance of the evidence does not show plaintiff was granted an exclusive right to sell the property which would entitle him to a commission on the sale made by defendant to Terral. There is a distinction between an “exclusive agency to sell” and an “exclusive right to sell” property.

A real estate broker who has only an exclusive agency to sell is not entitled to a commission on sales made by the owner himself. He is entitled to a commission only on sales made by himself to purchasers produced by or through himself. Such a contract does not give the broker the exclusive right to sell the property; it simply precludes the owner from appointing any other agent during the life of the contract. .
McKinney Realty Co. v. Kabel, 131 So.2d 567 (La.App. 4th Cir. 1961).

The testimony shows that at most the plaintiff was made an exclusive agent to sell the property. Therefore, he is not entitled to a commission on the sale made direct by defendant to Terral.

For the foregoing reasons the judgment is reversed, and it is ordered that there be judgment in favor of defendant, Max D. Williams, dismissing the demands of plaintiff, Franklin L. Arender, at plaintiff’s cost.


author: BOLIN, Judge.

text:
    A. B. GREER, Plaintiff-Appellant, v. Gladney (Doc) HATTER et al., Defendants-Appellees.
    No. 13650.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    En Banc. Rehearing Denied Dec. 13, 1978.

      C. Sherburne Sentell, Jr., Minden, for plaintiff-appellant.
    Meadors & Meadors by George H. Mea-dors, Homer, for defendants-appellees, Mildred Odom et al.
    Paul Henry Kidd, A Professional Corp., by Richard A. Bailly, Monroe, for defendants-appellees, Gladney (Doc) Hatter et al.
    Before BOLIN, PRICE and MARVIN, JJ.

       HALL and MARVIN, JJ., dissent from refusal to grant rehearing.

   BOLIN, Judge.

Plaintiff filed this suit seeking a partition by licitation of property he claimed to own in indivisión with the defendants. After suit was filed, A. B. Greer died and his heirs were substituted as party plaintiffs. The pertinent facts are as follows:

Reverend Wake Hatter married Mattie Williams in 1873 and seven children were born of this marriage. Mattie died in 1895 and about a year later Hatter married Sarah Stewart. Sarah had previously contracted a marriage with another man in 1884 and he had deserted her some time around 1888.

In 1910, during his marriage to Sarah Stewart, Hatter purchased the property in question. He subsequently died intestate in 1930, as did Sarah in 1931.

In 1936, A. B. Greer, the plaintiff, and J. H. Odom purchased the interests of three of Wake Hatter’s heirs, John Hatter, Amos Hatter and Arch Hatter, at a judicial sale. In 1949 Greer purchased from the heirs of Sarah Stewart whatever interest they might have in the property. Also in 1949, James E. Gantt purchased the interest of Mattie Hatter Bishop, another heir of Wake Hatter.

The trial court held that since Sarah Stewart had been shown to have contracted a prior marriage, the plaintiffs, who were urging the civil effects of her second marriage, had the burden of proving this prior marriage had been dissolved or that Sarah Stewart had been in good faith in believing she could lawfully marry Wake Hatter. The court further held that this burden was not met and therefore neither Sarah nor her heirs acquired any interest in the property. The court also found that the judicial sales to Greer and Odom and the sale to Gantt were valid sales.

Plaintiffs appeal, alleging error in the trial court’s placing the burden of proving Sarah’s good faith on them. Alternatively, they allege the court erred in finding this burden was not met. They also allege error in the court’s admission into evidence of two affidavits which were objected to as hearsay.

The Hatter defendants appeal, alleging the trial court erred in finding the judicial sales to Odom and Greer and the sale to Gantt to be valid sales. We affirm the judgment in all respects.

The major issue is whether Sarah Stewart acquired any interest in the property resulting from her alleged marriage to Wake Hatter. We can answer this in the affirmative only if: (1) the “marriage” was in fact a valid one or, in lieu thereof, (2) Sarah entered into this invalid marriage “in good faith.” La.Civil Code article 117.

Plaintiffs strongly urge there is a presumption of validity of the second marriage and the burden of proving invalidity is upon the party attacking it. As a result, they contend that unless defendants can show that Sarah’s first marriage was not dissolved by death, divorce or annulment, they have no further burden of proof.

Defendants have shown the first marriage was not dissolved by death. The evidence indicates Sarah’s first husband did not die until about six years after her death. Defendants have also shown, through the testimony of the deputy clerk of court, that this marriage was not dissolved by divorce or annulment in Claiborne Parish, the parish in which Sarah and her first husband lived as man and wife. Plaintiffs contend that unless defendants show the first husband did not divorce Sarah in any of the various other places in which he lived, the presumption of the validity of the second marriage has not been overridden and consequently they have no need of proving Sarah’s good faith.

We cannot agree. While our jurisprudence has recognized this presumption of validity, it applies only in favor of an “innocent” spouse, i. e., one who has contracted a marriage under no legal impediment. Succession of Davis, 142 So.2d 481 (La.App.2d Cir. 1962); King v. McCoy Bros. Lumber Co., 147 So.2d 77 (La.App.2d Cir. 1962). Where there is a potential impediment to the second márriage, as in the case where a party deserts or abandons a spouse of a prior marriage in another state and remarries in Louisiana without reason to believe the first marriage is dissolved, the burden of proof is on that party to show either that the first marriage was dissolved or that he or she had good reason to think so in order for the presumption to apply. Lands v. Equitable Life Assurance Society of U.S., 239 La. 782, 120 So.2d 74 (1960).

We think the same rule should apply in this case. Although Sarah did not desert her husband, she did remarry with full knowledge of her prior marriage and the fact that nothing was done on her part to end that marriage. She would have been in the better position to know whether a divorce had been obtained and where it could possibly have been obtained. Defendants have shown all that can reasonably be expected within the limited knowledge available to them. Under these circumstances, once the defendants showed that this prior marriage had not been dissolved by death and had not been dissolved by divorce in the parish where the couple had lived as man and wife, it became incumbent upon plaintiffs, who were urging the civil effects of this marriage, to prove that the prior marriage had been dissolved or that Sarah was in good faith in believing that it had.

The plaintiffs have largely relied on a recent Supreme Court decision, Gathright v. Smith (No. 61289, June 19, 1978) (La.1978), to support their position. We do not find this case controlling. There, the heirs of the spouse whose marriage was under attack contended that the burden of proving bad faith is always on the party attacking the second marriage, and that only when this bad faith has been established does the burden of proving the first marriage was no longer in existence shift to the defender of the second marriage. The court, finding this contention erroneous, held that once the prior marriage was proved to be undissolved the burden of proving good faith is on the party whose marriage is under attack. It did not hold, as plaintiffs urge, that conclusive proof of the undissolved character of the first marriage is necessary in order to shift the burden of proof. It merely held that if this is shown, the burden shifts.

Plaintiffs alternatively contend that even if they had the burden of proof, this burden was met and the trial court erred in not so holding. We disagree. Although the testimony regarding this matter is conflicting, there is ample evidence in the record to support the trial court’s conclusion.

Plaintiffs also allege error in the trial court’s admission into evidence of two affidavits objected to as hearsay. The first of these two affidavits was taken of two now-deceased witnesses when this same suit was filed in 1949. The second was taken of two witnesses in 1974 and recited substantially the same information as the first. One of these two witnesses also testified at trial.

To determine whether Sarah Stewart was in good faith in believing she was married to Wake Hatter, Sarah’s state of mind when she entered into a marriage in 1896 is very relevant. When this case came to trial there was no one alive with firsthand knowledge as to this crucial question. The affiants in the 1949 affidavit were both around 70 years old and both had firsthand knowledge of the situation. We therefore hold that under these special circumstances of necessity, the trial court was correct in considering this affidavit. Salley Grocer Company v. Hartford Accident and Indemnity Co., 223 So.2d 5 (La.App.2d Cir. 1969). Since the 1974 affidavit recited substantially the same information, its introduction into evidence was harmless error, despite the fact that it constituted hearsay and double hearsay.

The Hatter defendants have also appealed. They alleged the trial court erred in holding valid the judicial sales of the interests in this property of three children of Wake Hatter. This allegation is based on their contention that these sales were actually made prior to the filing of any suit or the rendition of any judgments. We find no evidence to support this contention.

The Hatter defendants also allege the trial court was in error in holding the sale of the interest of Mattie Hatter Bishop to James E. Gantt valid. They allege this sale was for convenience only, i. e., to allow Gantt to protect her interest pending the outcome of this litigation. Although Mrs. Gantt testified this was partly the reason, she further stated that this transfer was also to ensure payment of a debt owed by Mattie’s husband to Mr. Gantt. Also, there was no counter letter executed. Under these circumstances, we find no error in the trial court’s conclusion.

The judgment is affirmed at appellant’s cost.

      . We note that in Gathright there was conclusive proof that the prior marriage was undissolved since there was record of a divorce obtained by the first husband well after the date of the wife’s second marriage. Here, if no divorce was ever obtained by Sarah’s first bus-band, defendants would be unable to conclusively prove the marriage was undissolved.


text:
    STATE of Louisiana in the Interest of Faye Doris McCONNELL.
    No. 13659.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Rehearing Denied Dec. 13, 1978.

      Baker, Culpepper & Brunson by J. Michael McDonald, Jonesboro, for defendant-appellant.
    Leon H. Whitten, Dist. Atty., Jonesboro, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Faye Doris McConnell, a fourteen year old female, was adjudicated a delinquent based upon the finding that she committed manslaughter. The juvenile court ordered her committed to the Louisiana Department of Corrections for an indefinite period of time not to exceed her twenty-first birthday. She appeals and questions the validity of the commitment order. We affirm.

Subject to certain exceptions, juvenile courts have exclusive jurisdiction over any child who commits a delinquent act while under the age of seventeen. La.R.S. 13:1569-70. A child who is adjudicated a delinquent may then be committed to the Louisiana Department of Corrections for an indefinite period, but in no case beyond his twenty-first birthday. La.R.S. 13:158o. However, the confinement period may not exceed the length of time for which an adult could be confined if convicted of the offense which forms the basis for the adjudication of delinquency. Id. The child remains under the jurisdiction of the juvenile court until age twenty-one unless he is discharged prior thereto by the court. La.R.S. 13:1572.

The commitment order in this case is clearly proper under the legislation. However, appellant contends that this statutory scheme, which permits confinement past the age of majority, violates her due process and equal protection rights under the Fourteenth Amendment to the U.S. Constitution. The record does not clearly reflect that appellant raised this constitutional challenge in the lower court. Assuming, without so holding, that the objection was timely raised below, we shall address ourselves to appellant’s arguments.

Appellant first argues that at age eighteen she becomes a “major” under La. Civil Code article 37, and that her rights as a major will be abridged if the juvenile court retains jurisdiction over her until the age of twenty-one. We find this argument to be without merit because the jurisdiction of the juvenile court is not dependent upon the provisions of the civil code defining minority or majority. State v. Dubois, 334 So.2d 412 (La.1976). The decision by the legislature to provide for confinement until the age of twenty-one (La.R.S. 13:1580) of those persons who have committed a delinquent act prior to their seventeenth birthday is not prohibited by our constitution.

Appellant next argues that the constitutional rights to a public trial and a trial by jury, applicable in criminal prosecutions, will be violated once she reaches her eighteenth birthday. She apparently argues that she cannot be confined for the three year period between the ages of eighteen and twenty-one if her juvenile adjudicatory hearing was conducted without observing the constitutional rights to a public trial and trial by jury.

We find this argument to be without merit. The right to a public trial or a trial by jury is not dependent upon age but upon the type of proceeding involved. The Louisiana Supreme Court has recently held that juveniles may elect to have a public adjudicatory hearing but that a juvenile does not have a right to a jury trial. State in Interest of Dino, 359 So.2d 586 (La.1978). Because appellant did not request a public hearing, we find that her adjudicatory hearing is not constitutionally infirm and that the resulting commitment order is proper.

The judgment below is affirmed.

      . Prior to its amendment in 1975, La.R.S. 13:1580 provided that a child could be committed for an indefinite period “but in no case beyond the minority of the child.” Confusion arose when LA.C.C. art. 37 was amended in 1972 to lower the age of majority from twenty-one to eighteen. Relying upon this amendment to the Civil Code, this circuit held that a juvenile could only be committed until his eighteenth birthday. State in Interest of Braswell, 294 So.2d 896 (La.App. 2d Cir. 1974), writ denied 296 So.2d 836 (La.1974). The fourth circuit in In re Pittman, 315 So.2d 62 (La.App. 4th Cir. 1975), writ denied 316 So.2d 398 (La.1975), held to the contrary by reasoning that the amendment to article 37 was not intended to have the effect of discharging from juvenile court commitment those persons who reach age eighteen. This apparent conflict was eliminated by Act 756 of 1975 which amended La. R.S. 13:1580 to specifically provide for commitment up to the age of twenty-one.