author: SWIFT, Judge. WATSON, Judge,

text:
    In the Succession of Florence Bell Jones SIMMS. Carolyn Jane Simms HOUGH, Plaintiff-Appellee, v. Harold A. SIMMS, III, et al., Defendants-Appellants.
    No. 6854.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 1979.
    Rehearing Denied June 6, 1979.

      Bean & Rush, Warren D. Rush, Lafayette, for defendants-appellants, Simms Group.
    W. Paul Hawley, Lafayette, for plaintiff-appellee, Carolyn Hough.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, by Joseph One-bane, for defendant-appellant, Simms.
    Voorhies & Labbe, H. Lee Leonard, David Foster, Lafayette, for defendants-appellants, Jacobsen Group.
    Before WATSON, SWIFT and STOKER, JJ.
   SWIFT, Judge.

This is a suit for declaratory judgment seeking a determination of the respective rights and duties of the parties under the will of Florence Bell Jones Simms (Mrs. Florence Simms).

The parties involved in the action are:

1. Plaintiff-Appellee, Carolyn Jane Simms Hough (Mrs. Hough);

2. Defendant-Appellant, Willard H. Simms (Willard Simms);

3. Defendant-Appellant, Harold A. Simms, III, Nancy Jean Simms Springhorn, Barbara Jane Simms, Mary Louise Simms., and David R. Simms (Harold Simms, III, et al.);

4. Defendants-Appellees, Marvin W. Ja-cobsen and Charles Alfred Jacobsen (Jacobsens); and

5. Defendant-Appellee, Dorothy Russell Simms, executrix (Mrs. Dorothy Simms).

The decedent, Florence Bell Jones Simms, was married to Harold A. Simms, Sr., who predeceased her. They had two children, Willard L. Simms and Harold A. Simms, Jr., both of whom died before their mother. Willard L. Simms had two children, Mrs. Hough and Willard Simms, who are the grandchildren of Mrs. Florence Simms. Harold A. Simms, Jr. was married to Mrs. Dorothy Simms and they had five children, Harold Simms, III, et al., who are also the grandchildren of the decedent. The Jacob-sens are the children of Mrs. Hough by her first marriage and hence are the great-grandchildren of the decedent.

Mrs. Hough, Willard Simms and Harold Simms, III, et al., of course, are forced heirs of Mrs. Florence Simms and are also legatees under her will. The Jacobsens claim to be legatees under the will. Mrs. Dorothy Simms has no claim to the succession property except as executrix.

Harold A. Simms, Sr. purchased from the Beadle family by two deeds dated June 16, 1927, approximately 56.95 arpents of farmland which fronted on and extended easterly from the Vermilion River. Its depth was greater than the frontage. On August 23, 1933, he bought from Isaac D. Bendel a 55.48 arpent tract that was situated to the south, or down river, from the land previously purchased. The two parcels were separated by property of William Thibodeaux.

Mr. Simms died in 1945 and his widow, Mrs. Florence Simms, was placed in possession of the two tracts of land in full ownership without dispute by the succession judgment dated June 6, 1955.

On September 22, 1955, Mrs. Florence Simms conveyed the second tract to her son, Harold A. Simms, Jr. This was actually a donation evidenced by a notarial act and also a simulated cash deed. However, apparently for title purposes, only the latter was recorded. Shortly thereafter the donee obtained from J. Howard Gassie a strip of land to be dedicated as a public road between his property and the Kaliste Saloom Road, which parallels the river. He conveyed these tracts to H. A. Simms and Associates, Inc., which subdivided same into Ivanhoe Estates on June 5,1956. Thereafter the corporation acquired the William Thibodeaux land and subdivided it into North Ivanhoe Estates No. 1 and North Ivanhoe Estates No. 2.

By act dated March 9,1956, Mrs. Florence Simms conveyed to Dr. Walter E. Leon-paeher a .72 acre parcel of land and to Dr. Louis Leonpacher a strip 60 feet in width from the 56.95 arpent farm mentioned first above and the parties agreed to establish certain rights of way for roads on their respective properties. One of these, which later became East Bayou Parkway, ran in a northerly-southerly direction through and divided Mrs. Florence Simms’ farm, with about 28 acres thereof on the eastern side of the road.

On March 6, 1959, Mrs. Florence Simms conveyed to Smith-Butcher, Incorporated, about 13.86 acres of land which was all of her original 56.95 arpent tract situated on the western side of the road except two lots and a small parcel on the river. Smith-Butcher subdivided its property into Floss-more Place Subdivision on March 10, 1959. The three tracts that Mrs. Florence Simms had retained were designated on the plat as Lot 14 on which the old farm house was located and Lot 4 where her new home was built. Her other parcel was designated thereon as a “Private Park”.

Mrs. Hough lived with Mr. and Mrs. Harold A. Simms, Sr. for about 15 years and was raised by them from childhood until she left for business college in Missouri in 1938. Although she moved to Hawaii not long thereafter, except for the first few years of her residence there she kept in touch with her grandparents through correspondence and visited Mrs. Florence Simms on a number of occasions up until the latter died. It was obvious that the decedent was very fond of Mrs. Hough.

Mrs. Florence Simms executed two wills, the first on June 10, 1958, with a codicil thereto dated January 25,1960. The second will, which expressly revoked all prior testaments, was executed by her on April 4, 1963. Its pertinent parts are as follows:

“At my death I direct that all of my just debts be paid and all taxes including all cost of the settlement of my estate. “I give and bequeath my two large diamonds to Nancy Jean Simms and to Carolyn Jane Simms, one of the diamonds to go to each of them.
“I give and bequeath the Masonic diamond to Mary Lou Simms, and my other diamond to Barbara Jane Simms.
“I give and bequeath unto Carolyn Jane Simms the property known as Boskydel, which is bounded by Ivanhoe Estates on one side and Walter Leonpacher’s property on the other.
“Subject to the bequests above made, I give and bequeath the entire remainder of my estate, including real estate, movable property, stocks, bonds, cash and all other assets whatsoever which I may own or possess at the time of my death, to my grandchildren, one-half (Vi2) to Carolyn Jane Simms, Irving Jackson, Butch Jackr son and Harold Willard Simms in equal proportions, or one-fourth (Vt) to each, and one-half (V2) to Nancy Jean Simms, Harold A. Simms, III, Barbara Jane Simms, Mary Lou Simms and David Russell Simms, in equal proportions, or one-fifth (Vs) to each.”

Mrs. Florence Simms died on June 19, 1970. Her succession was opened and the last will of April 4, 1963 was admitted to probate.

Disputes developed as to interpretation of testament and disposition of the succession property. Mrs. Hough then filed this action.

The issues presented for determination on this appeal are:

1. Whether the bequest to Mrs. Hough of “Boskydel” in the testatrix’s will was intended to include the tract of land comprising about 28 acres on the eastern side of East Bayou Parkway that was a part of the 56.95 arpent farm bought by Harold A. Simms, Sr. from the Beadles in 1927?

2. Whether the 55.48 arpent tract that was donated by the testatrix to Harold A. Simms, Jr. in 1955 must be collated by Harold Simms, III, et al., and if so, the value thereof?

3. Whether the legacies of the testatrix’s diamonds were effective?

4. Whether Mrs. Hough must collate gifts and sums expended by the testatrix and her husband for her food, clothing and education and, if so, the value thereof?

5. Whether Marvin W. Jacobsen and Charles Alfred Jacobsen are the parties referred to by the testatrix in the residuary clause in her will as “Irving Jackson” and “Butch Jackson”?

6. Whether Willard Simms has been deprived of his legitime?

1. Boskydel.

According to LSA-C.C. Article 1712:

“In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”

And Article 1715 of our Civil Code provides:

“When, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.”

It seems that the testatrix gave names to all of the properties she and her husband owned in Lafayette Parish. The home in which they first lived on Pinhook Road was known by them, their relatives and most probably others as “Flossmore”. The 56.95 arpent farm purchased from the Beadles in 1927 on which the testatrix was living at the time of her death was known as “Bos-kydel” and the tract she and her husband acquired from the Bendels in 1933 which she donated to their son, Harold A. Simms, Jr., in 1955 was known as the “Annex”. Mrs. Hough’s testimony as to these designations was confirmed by Mr. and Mrs. Merlin C. Smith, Randolph Briant and Louella S. Williams, who were related to the decedent and quite familiar with her properties but had no pecuniary interest whatsoever in the succession. All of them agreed that the name “Boskydel” referred to the whole farm and not just a house thereon. Despite rigorous cross-examination, the plaintiff’s witnesses were adamant in their testimony in this regard even though some of their memories were hazy as to the exact location of the farm’s boundaries.

That the testatrix intended to leave Mrs. Hough all she had left of this farm is confirmed by her prior will of June 10,1958, and the codicil thereto. She made the same bequest to Mrs. Hough and used the same description of Boskydel in both of her wills. And, in the codicil to the first will Mrs. Simms said:

“In my last will I bequeathed my farm known as Boskydel to Carolyn Jane Simms Hough. I have sold some acreage from the farm and expect to continue to do so. I am placing the proceeds of the sale of the farmland in the Lafayette Building Association. I now give and bequeath unto Carolyn Jane Simms Hough all money and stock which I own in the Lafayette Building Association at the time of my death, in addition to the remaining land comprising the said farm, which I also bequeath to her.”

Although the first will and its codicil were expressly revoked by the latter will that was admitted to probate, they were clearly admissible as evidence of the testatrix’s intention as to the bequest to Mrs. Hough in the second testament.

The court is convinced that the testatrix intended to leave Mrs. Hough all that she had not sold of the original farm known as Boskydel despite the fact that the northeasterly bounding owner in the description of the property in the bequest (Walter Leonpacher) owned only a small tract adjacent to the Flossmore Place lot on which Mrs. Florence Simms resided in her new home on the westerly side of East Bayou Parkway. Actually, Walter Leonpacher’s father, or his heirs if he was deceased at the time, owned other property along most of the northeasterly boundary of Boskydel that had been subdivided into Bois de Lafayette and its lots were then being sold by the Leonpachers. Being the one with whose name she probably was most familiar, it is understandable that the testatrix used the name Walter Leonpacher as the northeasterly bounding owner of Boskydel in her will.

In any event, according to Courvelle v. Eckart, 50 So.2d 325, 326 and 327 (La. App. 1 Cir. 1951):

“Citation of authorities is not necessary to substantiate the proposition that real estate may be transferred by name, such as a plantation, farm or estate designated by a certain name; and when this is done, in case of error in parcel described such as in the bounds, the name of the property will prevail. In this case, Baker sold to Fouqua the “Long Point Bend” without reservation, thus including in the sale the property in dispute.”

This court is not inclined to attach any great significance in its determination of the testatrix’s intention in this bequest to the fact that the residuary clause in the will contains the words “including real estate”, even though she owned no real estate other than Boskydel when the will was executed on April 4, 1963. This was seven years before Mrs. Simms’ death and few, if any, attorneys would fail to include such a provision in a residuary clause to cover the possibility that the testatrix might acquire other real estate prior to her death. As matter of fact, the residuary clause in this testament also included “bonds”, but the descriptive list does not reflect that there were any in the succession.

Nor can any great weight be given on this issue to the plat attached to the act executed by Mrs. Simms, Dr. Louis Leon-pacher and Dr. Walter E. Leonpacher of March 9, 1956 (Harold Simms # 4), which has the' words “BOSKY DELL” printed entirely on that portion of the Simms tract lying to the west of a “PROPOSED ROAD” (East Bayou Parkway). Undoubtedly, the parties were concerned with the land conveyed and the rights of way to be established by the instrument, not with the extent and all boundaries of Mrs. Simms’ property because the boundary line farthest from the river is not even shown thereon. The question to be determined in this action is not what the surveyor was thinking when he so labeled the plat. It is what Mrs. Simms intended when she executed the will. No one testified that she ever made any such distinction as contended by appellants when referring to Boskydel. Clearly, the preponderance of evidence is that she referred to the whole farm, which was situated on both sides of what became East Bayou Parkway, when she spoke of Boskydel.

The same may be said for the plat designated as Harold Simms # 3 dated October 13, 1954, which shows two locations for the proposed road and the right of way between Mrs. Florence Simms’ property and the small tract that she later sold to Walter Leonpacher. The words “ESTATE HAROLD A. SIMMS” and “BOSKY DELL” all appear on the western side of the proposed road even though there is no question that the land there and the 28 acres opposite same on the eastern side of the road were both included in the 56.95 arpent farm purchased by Harold A. Simms, Sr. from the Beadles in 1927 and were then included in his succession.

That Mrs. Hough mistakenly interpreted the bequest immediately after her grandmother’s death, of course, is to be considered along with the other evidence. However, the real question to be determined is what Mrs. Florence Simms intended by the bequest of Boskydel, not what Mrs. Hough first thought it meant.

This court concludes that the trial judge correctly interpreted the bequest to Mrs. Hough of Boskydel as including all of such farm she had not disposed of at the time of her death, being the parcels of land more particularly described in Paragraph 2 of his judgment.

2. Collation by Harold A. Simms, III et al. of the “Annex”.

Willard Simms contends that the trial judge erred in not requiring Harold Simms, III et al. to collate the donation inter vivos of the 55.48 arpent tract designated by Mrs. Florence Simms as the “Annex” that was donated by her to their father, Harold A. Simms, Jr., on September 22, 1955. The basis for the ruling was LSA-C.C. Art. 1240 which reads as follows:

“In like manner, the grandchild, when inheriting in his own right from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession; but if the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced his inheritance.” (Emphasis added)

In the trial judge’s opinion Harold Simms, III, et al inherited from their grandmother in their own right as legatees under her will and did not come into the succession through representation of their deceased father. Consequently, collation was not required. We agree.

The term “inheriting in his own right” is not defined in our civil code and the articles thereof in regard to collation are ambiguous in a number of respects. We have not been cited nor has our own research disclosed a case wherein the particular point with which we are concerned has been decided. However, in Miller v. Miller, 105 La. 257, 29 So. 802 (La.App.1901), a grandfather bequeathed $20,000.00 to the daughter of a predeceased son and left the balance of his estate to his four children, share and share alike. When the grandchild elected to claim her legitime, the court held that she had to collate an $8,000.00 donation inter vivos previously given by the grandfather to this legatee’s father and include the $20,-000.00 legacy as a part of her legitime. Thereafter in Jordan v. Filmore, 167 La. 725, 120 So. 275 (La.1929), in referring to Miller our Supreme Court said:

“The court held that if the grandchild had not demanded a reduction of the residuary legacy to the disposable portion, and had accepted the legacy of $20,-000, the grandchild could not be compelled to collate the $8,000 given to the grandchild’s father by the testator during his lifetime, but that by claiming her legitime, the grandchild was obliged to collate the $8,000 and that the grandchild could not claim the legacy of $20,000 without deducting it from her legitime.”

We take it from this that the Supreme Court interpreted Article 1240 of our civil code to mean that if the grandchild had chosen to take the legacy rather than claiming her legitime, she inherited the legacy in her own right under the will and would not have had to collate. However, when she took the other course she came into the succession through representation of her predeceased father and was required to collate under that codal article.

Although it was actually dictum, this same interpretation of Article 1240 was expressed by Chief Justice O’Niell in the Succession of Schneidau, 182 La. 613, 162 So. 196 (1935) as follows:

“It is true that Mrs. Le Breton, as a testamentary heir, or an instituted heir, came into her grandmother’s succession in her own right, and not by representation. As a legal heir of her grandmother, Mrs. Le Breton would have inherited only by representation of her father; but she is not being called upon to collate in the succession of her grandmother for gifts or advances made by the grandmother.” [Emphasis added].

We believe this to be the most logical and reasonable interpretation of Article 1240 and the other codal articles on the subject of collation in regard to the circumstances presently before this court. Consequently, the judgment of the lower court in this respect will be affirmed.

3. Bequests of diamonds.

In her last will the testatrix bequeathed her “two large diamonds to Nancy Jean Simms and to Carolyn Jane Simms, one of the diamonds to go to each of them”. The diamonds referred to are not of equal value. One of them, a diamond ring, was appraised at $1,950.00 and the other, a diamond pin, was valued at $895.00.

The trial judge held that the intention of the testatrix as to which legatee gets which diamond could not be ascertained as there were no circumstances proved to aid him in this connection. He declined the suggestion of counsel to give the two large diamonds to both legatees in indivisión and held that the legacy was a nullity. The diamonds thus became part of the mass of the succession.

On appeal, both legatees have renewed their request that the two diamonds be awarded to them in indivisión and that they be allowed to work out a partition thereof. None of the other parties in this suit have indicated any objection to this interpretation of the legacy.

Clearly, the intention of the testatrix was that the two large diamonds should go to the two named legatees. The suggested disposition of this particular legacy will more nearly give effect to her intention than would returning the diamonds to the mass of the succession. Therefore, the judgment of the trial court as to this bequest will be reversed and the diamonds will be awarded to Nancy Jean Simms and Mrs. Hough in indivisión.

The other two diamonds bequeathed to Mary Louise Simms and Barbara Jane Simms were not mentioned in the descriptive list of the property of the succession. Apparently, they were not among the effects of the deceased at her death and for this reason the bequest lapsed.

4. Collation by Mrs. Hough.

The appellants contend that Mrs. Hough should be required to collate the cost of board, support and education expended by the decedent on Mrs. Hough while she lived with her grandparents as a child.

The trial judge concluded from his study of LSA-C.C. Articles 1242, 1243, 1244 and 1245 and their history as related in Succession of Gomez, 223 La. 859, 67 So.2d 156 (1953), that she was not obligated to do so. We are inclined to agree with his interpretation of these codal articles even though Article 1244, which specifically exempts .such donations from collation, seems to be confined to expenditures and gifts by parents to their children. Our view in this respect is buttressed by Civil Code Article 3556(8) which defines the word “children” as including grandchildren and all other descendents in the direct line and Article 229 which provides that ascendants are bound to maintain their needy descendants and vice versa. Be that as it may, we note that there is no evidence in the record to prove just when and in what amounts such donations were made and conclude that appellants have failed to carry the burden of proof required of them in this instance.

5. Identity of the legatees, Irving and Butch Jackson.

In the second paragraph of her will the testatrix states:

“ . That Carolyn Jane Simms’ had been first married to a Mr. Jackson and of that union two (2) children were born, namely, Irving Jackson and “Butch” Jackson. . . . ”

She then refers to the two latter persons as her grandchildren and names them among the residuary legatees.

The evidence reflects that Carolyn Jane Simms first husband was named Jacobsen and that she had two children by that marriage named Marvin Willard Jacobsen and Charles Alfred Jacobsen.

Article 1714 of the Louisiana Civil Code provides:

“In case of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testator, and to him shall the legacy be decreed.”

In other words, the court should resort to extrinsic evidence to determine the identity of an obscure legatee.

The trial judge concluded that the testatrix intended the two Jacobsen children to be the legatees mentioned in her will as Irving and Butch Jackson. He reasoned that the error was plausible, because the testatrix was never really close to these two children of Mrs. Hough and she had not actually written the will herself.

There is no indication that Mrs. Hough was married more than twice or that she had any children whose names resembled Jackson other than the two Jacobsens. Consequently, we agree with the ruling of the trial judge on this point.

6. Willard Simms’ Legitime.

Although collation is not required in this case, the provisions of our civil code in regard to the disposable portion of a decedent’s property and reduction of donations inter vivos and mortis causa in case of excess are applicable at least as to the claim of Willard Simms for his legi-time. Therefore, the trial judge’s determination of the value of the property of the succession, including the prior donation to Harold A. Simms, Jr., and the forced portion of Willard Simms must be considered by this Court.

LSA-C.C. Article 1505 provides as follows:

“To determine the reduction to which the donations, either inter vivos or mortis causa are liable, an aggregate is formed of all the property belonging to the donor or testator at the time of his decease; to that is fictitiously added the property disposed of by donation inter vivos, according to its value at the time of the donor’s decease, in the state in which it was at the period of the donation.
The sums due by the estate are deducted from this aggregate amount, and the disposable quantum is calculated on the balance, taking into consideration the number of heirs and their qualities of ascendant or descendant, so as to regulate their legitimate portion by the rules above established.” (Emphasis added)

The values of the two lots and private park in Flossmore Place Subdivision were stipulated by the parties. There is no dispute in regard to the values of the stock, jewelry, furniture and fixtures, the amount of cash deposited in banks and building and loan associations and the debts and liabilities of the succession as shown on the amended descriptive list. However, the value of the Annex is seriously contested and the value of the 28.51 acre tract of Boskydel that was left to Mrs. Hough is also in dispute.

Two expert real estate appraisers, Maurice Chappuis and Luther George Parker, testified on this subject by deposition. A joint appraisal report of two other experts, Preston J. Babineaux and D. S. Young, was presented by stipulation.

Mr. Chappuis reached two conclusions as to the value of the Annex on June 19, 1970, when Mrs. Florence Simms died. The first was $174,455.00 and was based on its condition as farm land without legal access when donated to Harold A. Simms, Jr. in 1955, but surrounded by subdivisions with improvements and a mall in the area as then existed in 1970. The other 1970 valuation was $136,750.00 and resulted from his consideration of both the Annex and the surrounding lands as they existed in 1955. Mr. Chappuis felt that there was only a slight reduction in value by reason of the landlocked condition of the Annex in 1955.

Mr. Parker appraised the Annex at $262,-025.00. This was his opinion of its value on June 19, 1970, but in the same condition as it was when donated in 1955. The fact that there was no legal access to the property in 1955 did not influence this appraiser’s conclusion at all.

Messrs. Babineaux and Young appraised the Annex at $37,700.00, this being its value in 1970 in its landlocked condition as in 1955. These appraisers deducted from 50 to 60 per cent of its value because of inaccess-ability. Although there were no dedicated roads to the property in 1955, Harold A. Simms, Jr., was able to acquire a right-of-way for a public road to the Annex by exchange on December 5, 1955, apparently without a great deal of difficulty. Consequently, it is extremely doubtful that the accessability factor would reduce the value of the property to the extent Messrs. Babi-neaux and Young thought.

The trial judge accepted the lower appraisal of Mr. Chappuis, $136,750.00, “as being more practical and as being in line with 1505 of the Civil Code”. We cannot say that he was clearly wrong in doing so.

We do believe, however, that he was manifestly in error in concluding that the sum of $85,530.00 as set forth in the descriptive list was the value of the 28.51 acre tract of Boskydel bequeathed to Mrs. Hough. Mr. Chappuis appraised this tract at $122,600.00 and Mr. Parker concluded that its value was $99,785.00. Messrs. Babi-neaux and Young’s report does not mention this tract..

Mr. Chappuis’ testimony in regard to this property is based on his analysis of comparable sales and seems fair and reasonable. We also note in the brief filed on behalf of Mrs. Hough, who will bear the brunt of any increase in the value of this property, that she believes Mr. Chappuis’ approach is sound and his conclusion reasonable and urges us to accept his appraisal. We agree and will do so.

We find the property of the succession and the value thereof to be as follows:

1. Lot 4 of Plossmore Placo Subdivision and improvements $ 25,000.00
2. Lot 14 of Plossmore Place Subdivision 10,000.00
3.28.51 acres of Boskydel on the east side of East . Bayou Parkway 122,600.00
4. Private park in Flossmore Place Subdivision 10,000,00
TOTAL IMMOVABLES $167,600.00
5. Stocks $ 15,860.04
6. Jewelry 2,845.00
7. Household furniture and fixtures' 750.00
8.Cash in banks and building and loan associations 62.609.46
TOTAL MOVABLES $ 82.064.50
RECAPITULATION
’ASSETS:
Immovables $167,600.00
Movables 82.064.50
TOTAL ASSETS $249,664.50
DEBTS AND LIABILITIES 17.735.41
NET ESTATE $231,929.09

In order to determine Willard Simms’ legitime, the value of the Annex or the sum of $136,750.00 must be added to the net estate, making the total mass of the succession $368,679.09. Since the testatrix was survived by the descendants of her only two children, the non-disposable portion thereof is one-half or $184,339.55. Being one of two children of a son of the testatrix, Willard Simms’ legitime is one-fourth of the non-disposable portion or $46,084.89. This is the total amount to which he is entitled from the succession, subject to payment of his pro rata share of taxes, expenses and court costs.

The testatrix having disposed of all of her property by her last will and testament and the total of such dispositions being in excess of the disposable portion, at least insofar as Willard Simms is concerned, there must be a pro rata reduction of all of her bequests without distinction between the universal and particular dispositions in accordance with LSA C.C. Article 1511 in order to provide for Willard Simms’ legitime. This can be accomplished on remand before delivery is made of Mr. Simms’ forced portion and the reduced bequests to the legatees thereof.

For these reasons, the judgment of the district court is amended to reflect that the legitime of Willard H. Simms is $46,084.89, the value of the 28.51 acre tract on the east side of East Parkway Boulevard that was formerly a part of Boskydel is $122,600.00 and the total net value of the property of the succession is $231,929.09; it is reversed insofar as it nullifies the bequest in the testatrix’s will of two large diamonds to Nancy Jean Simms and Carolyn Jane Simms and it is now ordered, adjudged and decreed that such diamonds be delivered to these legatees in indivisión; but the judgment is otherwise affirmed. This matter is remanded to the district court for further proceedings consistent with the views expressed hereinabove. The costs of this appeal will be assessed to all parties to the suit, pro rata, with the exception of the testamentary executrix, Mrs. Dorothy Simms, and Charles and Marvin Jacobsen.

AMENDED, AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

WATSON, J., concurs in part and dissents in part and assigns written reasons.

WATSON, Judge,

concurring in part and dissenting in part:

As to the issues involving (a) collation by Simms (b) diamonds (c) Jacobsens and (d) collation by Ms. Hough, I concur with the majority.

However, I disagree with the resolution of the issue of what comprised the bequest of “Boskydel”. This, of course, affects the legitime of Willard Simms. The bequest does not, in my opinion, include the entirety of the Beadle farm purchased in 1927. Had the testatrix intended to leave to Ms. Hough all of the property purchased from the Beadles in 1927, she could easily have specified this intention. The description of “Boskydel” is, at best, ambiguous. Civil Code article 1717 provides:

“If it cannot be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least.”

It is also well settled that, when there is doubt about the intention of a will, the preferred interpretation is that which is closest to the legal order of distribution. Succession of Montegut, 217 La. 1023, 47 So.2d 898 (1950). Also see Burthe v. Denis, 31 La.Ann. 568 (1879).

Some of the evidence which convinces me that the majority’s interpretation of the testatrix’s intention as to “Boskydel” is incorrect is the following:

The testimony of Ms. Merlin (Beatrice) Smith was that the name “Boskydel” was used interchangeably to refer both to the house and the house and property together. See her deposition at TR. 159. Ms. Smith also testified at TR. 156 that the old home, which was torn down, was referred to by the decedent as “Boskydel”, but the home in Flossmore Place where she died was not referred to as “Boskydel”. According to Ms. Smith, the property where she lived at the time of her death was always called Flossmore. In deposition, Merlin C. Smith said he did not know whether the name “Boskydel” referred to the house or the house and property together. (TR. 194). Mr. Smith testified that the testatrix referred to the property on which she resided at her death as Flossmore. (TR. 195).

The reliance on the testimony of Louella Williams and Randolph Briant is misplaced. While they seem to identify the whole farm as “Boskydel” (see Briant at TR. 245), their knowledge is dated and their testimony is inconsistent (see Williams at TR. 586).

Louella Smith Williams saw very little of the testatrix after 1939 and her testimony as to the intention of the 1963 will is not helpful. She also admitted changing her testimony between deposition and trial. (TR. 616). Randolph Briant admitted, in deposition, he was not too familiar with the testatrix in her later years. (TR. 229). The name “Boskydel” had not been mentioned to him since the 1940’s, long before the date of the will. (TR. 244).

The executrix of the succession, Dorothy Russell Simms, testified that she had no personal knowledge of what the testatrix meant when she used the word “Boskydel”. (TR. 418). However, the executrix testified that the name “Boskydel” could not have been a reference to the entire tract and, in her opinion, the name referred to the farmhouse. She had been familiar with the property since 1931 and had always understood “Boskydel” to refer to the old house. She testified that the old house was still there when Flossmore Place was subdivided and was not incorporated in the subdivision lots to be sold for sentimental reasons. (TR. 441). After Ms. Simms moved across the street into the new house, the old house was rented.

In view of the close relationship between Ms. Hough and her deceased grandmother, the letter from Carolyn Hough to the executrix, Dorothy Simms, at TR. 277 in Vol. 2, (Willard Exhibit A) is significant. Ms. Hough then stated:

“I also told them Lady [the name she used for her grandmother] left me Bosky-del, which after Merlin sold those lots, consisted of her home and one lot. . . ”

This letter is inconsistent with the testimony of Ms. Hough at trial. The letter, as a whole, is a clear and businesslike document. Ms. Hough, to whom “Boskydel” was bequeathed, was as likely as anyone to know what her grandmother meant by the term.

Harold Simms’ Exhibit No. 4 is significant since it was executed by the decedent in 1956 and shows exactly what property she thought of as “Boskydel”. This exhibit and the bequest in the will of the remaining real estate to the grandchildren show conclusively that the testatrix did not intend “Boskydel” to include all of her real estate as the majority concludes.

I do not agree that the bequest of the remaining real estate was merely a legal precaution; the courts are not entitled to ignore a provision of a testator’s will on the supposition that it is mere “window-dressing”.

The evidence shows that the testatrix used the term “Boskydel” for lot 14, the site of the old farmhouse, which she regarded as the remainder of her “farm”, after she moved across the street to her second “Flossmore”.

Therefore, I respectfully dissent as to the “Boskydel” issue.

      . Neither Mrs. Hough nor the Jacobsens have appealed or answered the appeal. As a result, the judgment confirming their legacies cannot be amended in their favor. It is obvious from the position taken by appellants, Harold Simms, III, et al, that they have elected to accept their legacies rather than collate the Annex. Consequently, none of these parties have claimed their legitime.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Kermit DAWSON, Plaintiff and Appellee, v. Felix PIAZZA d/b/a Commercial Finance Company, Defendant and Appellant.
    No. 12612.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.

      Charles B. W. Palmer, Amite, counsel for Kermit Dawson.
    Charles G. Walker, Hammond, counsel for Felix Piazza.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is an appeal from a judgment granting damages for wrongful seizure. The trial judge awarded the plaintiffs Kermit and Geneva Dawson, $6,000.00 less a credit to the defendant, Felix Piazza d/b/a Commercial Finance Company, for the unpaid balance on a promissory note executed by the plaintiffs. Defendant has appealed.

Factually, Kermit and Geneva Dawson executed a promissory note on November 19, 1969 for $1,080.00 secured by a chattel mortgage covering various household articles. Defendant filed for executory process on November 8, 1972 for the remainder of the unpaid balance due on the note, $740.00 plus interest and attorney’s fees. Based on the chattel mortgage, plaintiffs’ articles were seized by the sheriff on November 9, 1972. The sheriff’s return states the following articles were seized:

One Kelvinator electric refrigerator
One Wizard gas range
One above ground butane gas tank
One Philco electric refrigerator
One Kelvinator wringer washer
One 5500 Rolaire fan
One mahogany cedar chest
Two mahogany tables
One GE TV and antenna
One Olympic radio-stereo
One upholstered rocker
One complete mahogany bedroom suite

On December 4, 1972 plaintiffs’ attorney informed defendant through his attorney that several of the items seized were wrongfully taken. On December 7, 1972 defendant returned a butane tank which plaintiffs asserted belonged to a relative. The sheriff sale scheduled for December 13, 1972 was halted, and all items seized from the plaintiffs were returned on March 21, 1973.

On appeal appellant alleges that the trial court erred in (1) finding that the seizure under a writ of executory process was wrongful and (2) awarding damages; and alternatively in awarding excessive damages.

ERROR NO. 1

The trial judge in his written reasons for judgment held:

“Although defendant denied the seizure was illegal and not excessive, the preponderance of the evidence is clear that some household items were seized ostensibly as being listed on the chattel mortgage— though they clearly were not. See e. g. the television, some beds, and one butane tank.”

Appellant’s evidence demonstrates that the wrongfully seized articles were two beds, one Philco television set, and one butane tank. There is no doubt that the seizure was excessive since neither the beds, the television set, nor the butane tank which belonged to a third party, were listed in the chattel mortgage.

Appellant argues that only the one bedroom set listed in the chattel mortgage was actually seized; however, the factual conclusion of the trial judge that “some beds” were seized based on the testimony of the plaintiffs lies within the discretionary determinative powers of the trial court, and we find no manifest error in this conclusion. Therefore, this court finds that the trial judge based on the evidence presented did not err in holding that the two beds, the television set, and the butane tank were wrongfully seized.

ERROR NO. 2

In determining damages for wrongful seizure, the jurisprudence is consistent in awarding general damages for humiliation, embarrassment, mental torment, depression, inconvenience and worry. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1958), Mid-State Homes, Inc. v. Bice, 361 So.2d 275 (La.App. 1st Cir. 1978), Peterson v. Olinde Hardware and Supply Co., Inc., 356 So.2d 92 (La.App. 1st Cir. 1978) writ denied 357 So.2d 1169 (La.1978). Also, in Hernandez, supra, the Supreme Court in measuring damages considered the duration of the illegal retention of the articles.

Appellant is correct in asserting that the award for damages should not include the seizure of the butane tank. The tank belongs to a third party who is not a member of the suit.

As to the seizure of the two beds and the Philco television set, this court finds the award of $6,000.00 grossly excessive and thus an abuse of discretion on the part of the trial judge. The wrongful seizure of two beds and a TV set caused only a minute part of the mental torment, depression, embarrassment and humiliation suffered by the plaintiffs upon the execution of the writ and seizure of those- household ■articles which were actually listed on the chattel mortgage.

In determining that the trial judge abused his discretion, this court follows the principle established in Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971) that “the awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.” In Peterson v. Olinde Hardware and Supply Co., Inc., supra, the plaintiffs’ movable property, a color television set, two air conditioners and a radio cassette recorder, was wrongfully seized and this court deemed $750.00 sufficient to compensate the plaintiffs. For the wrongful seizure of vehicles, the awards for damages in the area of invasion of rights, embarrassment, humiliation, and inconvenience, range from $100.00 to $1,000.00. Hernandez v. Harson, supra, Ford Motor Credit Company v. Hogg, 351 So.2d 1324 (La.App. 2nd Cir. 1977), Samaniego v. Horseless Carriage, Inc., 350 So.2d 193 (La. App. 2nd Cir. 1977) writ refused 352 So.2d 240 (La.1977), Hancock Bank v. Alexander, 344 So.2d 21 (La.App. 3rd Cir. 1977).

Recently in Parker v. Travelers Insurance Co., 369 So.2d 1120 (La.App. 1st Cir. 1979), this court stated:

“In considering the award for general damages, we will allude briefly to our duty as a reviewing court. We have come from the doctrine of uniformity of awards, Grissom v. Heard, 47 So.2d 108 (La.App. 1 Cir. 1950), through the philosophy of Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), that previous awards should be used only as an aid in determining whether the trier had abused its ‘much discretion,’ LSA-C.C. art. 1934(3), to the current rule of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), which purports to clarify the Gaspard v. LeMaire admonition. Under the Coco doctrine, while we might modify the damage award of the trier if it is inadequate or excessive after a Gaspard examination, w.e must first find, in order to modify an award for general damages, an abuse of the trier’s discretion, and then limit our modification to an increase or decrease so that it comes within our determination of the minimum or maximum amount which would not have constituted such abuse had it been granted by the trier.”

After reviewing the recent jurisprudence in the area of wrongful seizure of movable property, we find that the trial judge abused his discretion by exceeding the normal range of awards for general damages, $750.00 to $1,000.00. An award of $6,000.00 is grossly excessive in light of the objects taken and the duration of the seizure. Thus, this court determines that to justly compensate the plaintiffs with a reasonable award, Kermit Dawson is entitled to $750.00 and Geneva Dawson is entitled to $500.00, a total of $1,250.00 less $740.00, the balance due on the promissory note.

As to the award of attorney’s fees the trial judge granted Kermit Dawson “attorney’s fees to stop wrongful seizure— $1,000.00.” This award has been deleted from this court’s award for damages based on Hernandez v. Harson, supra, and Peterson v. Olinde Hardware and Supply Co., Inc., supra.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed and amended to read as follows; IT IS ORDERED, ADJUDGED and DECREED that judgment is hereby rendered in favor of Kermit Dawson and Geneva Dawson against the defendant, Felix Piazza d/b/a Commercial Finance Co., in the sum of $1,250.00, subject to a credit of $740.00 or a net of $510.00 plus legal interest from judicial demand; appellees to pay all costs.

AMENDED AND AFFIRMED.

      . Defendant had already removed a butane tank from the plaintiffs’ premises; however, the trial judge did not hold the seizure wrongful, and no appeal has been taken on this issue.

      . The trial judge itemized the damages as follows:
      “A. To Kermit Dawson:
      (1) Invasion of inherent property rights_„_ $1,000.00
      (2) Mental torment, depression and suffering _ 750.00
      (3) Embarrassment and humiliation 250.00
      (4) Trespass by seizing wrong property _ 500.00
      (5) Attorneys fees to stop wrongful seizure_ 1.000.00
      $3,500.00
      Less one-half bal. due the defendant on note_370.00
      Total due Kermit Dawson_ $3,130.00
      “B. Geneva Dawson:
      (1) Invasion of inherent property rights ,__ $1,000.00
      - (2) Mental torment and suffering_ 500.00
      (3) Humiliation and embarrassment 250.00
      (4) Wrongful trespass and seizure_750.00
      $2,500.00
      Less one-half bal. due the defendant on note_370.00
      Total due Geneva Dawson_$2,130.00”


author: GARRISON, Judge. LEMMON, Judge, REDMANN, Judge,

text:
    Helen Albarado REINHARD v. CITY OF NEW ORLEANS and South Central Bell Telephone Company.
    No. 9887.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 1979.
    Rehearing Denied June 11, 1979.

      Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellee.
    Donald A. Hoffman, City Atty., Thomas P. Anzelmo, Sr., Deputy City Atty., Barbara Treuting Casteix, Asst. City Atty., for defendant-appellant City of New Orleans.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser,'New Orleans, for defendant-appellant South Central Bell Telephone Co.
    Before REDMANN, LEMMON and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff, a 55-year-old woman, was injured when she tripped and fell over a two-inch hole created by a difference in elevation between a South Central Bell Telephone Company manhole and the surface of the street. At the time of the accident, Mrs. Reinhard was crossing Dauphine Street in the middle of the block between two major department stores. As a result of the accident she suffered a fracture of the right femoral neck which required an open reduction surgery. She has suffered a 15% loss of function of the hip joint. The trial court found Mrs. Reinhard free of negligence and cast the City and South Central Bell in judgment for the sum of $76,200.00. We affirm in part and reverse in part.

The record establishes that this manhole was placed in the street in 1898 by the predecessor of South Central Bell and there has been no maintenance or adjustments to the manhole since that time. The City of New Orleans last resurfaced the street in that block in 1961. The trial court found that the defect was caused by this “original construction.”

The City has a duty to maintain its streets and sidewalks in a safe condition for use by the public. Kinard v. City of Jennings, 184 So.2d 570 (La.App. 3rd Cir. 1966); LeBlanc v. Parish of East Baton Rouge, 271 So.2d 634 (La.App. 1st Cir. 1972), writ refused, 273 So.2d 845.

The necessary steps to determine a municipality’s liability were set forth in St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964):

“We must first make a determination as to whether the instant defect was dangerous or was in the nature of a trap. In White v. City of Alexandria, 216 La. 308, 43 So.2d 618, this Court found that there is. no fixed rule for making such a determination; the facts and surrounding circumstances of each particular case control.
“In order to assess liability in a matter such as the instant one, it must be shown (1) that the unsound condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent person, and (2) that the municipality had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. ‘In other words, if the defect is slight, there can be no recovery and, even if it is patently dangerous, the municipality is not responsible unless it has had actual notice of it or unless the condition has been permitted to remain in its dangerous state for such a length of time as to warrant the conclusion that the municipality is negligent in failing to discover and correct it.’ Parker v. City of New Orleans, La.App., 1 So.2d 123. See, Cobb v. Town of Winnsboro, La.App., 49 So.2d 625; Foster v. Employers Liability Assurance Corporation, Ltd., La.App., 129 So.2d 913; Bond v. City of Baton Rouge, La.App., 129 So.2d 887.” 246 La. 425, 165 So.2d at 276.
“[Tjhere have evolved certain legal principles which are to be considered in determining the instant controversy. Thus, a municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of .them in perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury. Defects in sidewalks that are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Such ways of passage are intended for public use, of course, and a pedestrian is entitled to assume that they are not dangerous. Further, he is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle. However, he cannot be completely oblivious of its condition; he must exercise ordinary care when using it, having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.
“For determining what is a dangerous defect in a sidewalk (that which renders the municipality responsible in damages to a pedestrian injured as a consequence thereof) there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonable safe condition for persons exercising ordinary care and prudence.” White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620 (1949).

Applying these principles to the instant case, the record reflects that the defect was not visible from the side of the street from which the plaintiff was crossing. This particular part of the street was regularly used by pedestrians; indeed, the City itself would close this section off to vehicles during parades, thus subjecting it to exclusive pedestrian use. The defect existed for at least fifteen years, so the City had ample time to become aware of it, and the requirement of constructive knowledge is fulfilled. We conclude that the district court was correct in finding the City liable.

The trial court also found liability on the part of South Central Bell based on Article 2317 as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975). In order to have liability under 2317 the plaintiff must show:

1. That the thing which caused the injury was in the care or custody of the defendant owner;
2. That a vice or defect existed in the thing;
3. That the vice or defect caused the injury.

A vice or defect is defined as the creation of an unreasonable risk of injury to another. In the instant case the manhole did create an unreasonable risk of injury in that it was not raised to the proper level to be even with the street.

However, one exception to the Loescher doctrine occurs where the vice or defect is created by the intervention of a third party. That exception is applicable here. As South Central Bell argues, the defect here was caused by a third person (the City) because the difference in elevation was caused by the resurfacing of the street. Moreover, South Central Bell cannot be held to have had knowledge of the defect. Although there was testimony that a utility company was customarily notified when a street was resurfaced, neither the City nor South Central Bell had any record of notification in this case. Under these circumstances the City did not discharge its burden of proving that it had notified South Central Bell that the street had been resurfaced. Thus, there was no basis for imposing the duty on South Central Bell to correct a dangerous condition created by the City. Accordingly, we reverse the finding of liability on the part of South Central Bell.

Defendants-appellants argue that Mrs. Reinhard was contributorily negligent in that she was crossing the street in violation of Chapter 38 § 180 of the Municipal Code of the City of New Orleans, which prohibits pedestrians from crossing roadways at places other than crosswalks in any business district. However, this ordinance was designed to protect pedestrians from being struck by automobiles, not to protect them from the dangers of uneven manhole covers. Therefore, the violation of the ordinance was of no material consequence. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970); Laird v. Travelers Insurance Co., 263 La. 199, 267 So.2d 714 (1972).

Overall, on the review of the record, the trial court did not commit manifest error in determining liability on the part of the City and freedom from negligence on the part of plaintiff. Its determination will not be set aside. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Plaintiff has answered this appeal seeking an increase in the award of general and special damages. It is well-settled that the trial court’s determination of damages will not be disturbed, absent an abuse of discretion. Coco v. Winston Industries, 341 So.2d 332 (La.1976). There was no abuse of discretion in the award here.

For the foregoing reasons the judgment appealed from is affirmed as to the finding of liability of the City of New Orleans, but reversed as to the finding of liability of South Central Bell Telephone Company.

AFFIRMED IN PART AND REVERSED IN PART.

LEMMON, J., concurs and assigns reasons.

REDMANN, J., dissents and assigns reasons.

LEMMON, Judge,

concurring and assigning reasons.

The hazardous condition which caused this accident was a two-inch difference in elevation between the street surface and the manhole cover on the Maison Blanche side of the opening. Since the cover was flush with the street on the Holmes side, the depression would not readily be apparent to one crossing from the Maison Blanche side. The condition was created when the City resurfaced the street in 1961, and neither the City nor South Central Bell realigned the manhole frame after the resurfacing.

The critical determination is whether the City’s failure to remedy the condition it created constituted a breach of its duty to pedestrians under the overall circumstances. The trial court succinctly analyzed the scope of the City’s duty:

“Though the duty to provide for pedestrian safety is less in a street then (sic) on a sidewalk or cross-walk, there nevertheless remains some duty, especially where the City should anticipate heavy foot traffic. The duty, of course, increases in proportion to the volume of pedestrian traffic that the City should anticipate. In this instance, the defective manhole is in an area subjected to very frequent pedestrian use, lying between the side doors of two of the more popular department stores in downtown New Orleans and its presence violated the duty owed pedestrians by the City”.

This area was constantly used for pedestrian traffic, and the City owed a duty to pedestrians in this area not to create a hazardous condition on the walking surface which was hidden or not readily discernible. The City is liable for damages caused by the breach of that duty.

REDMANN, Judge,

dissenting.

Plaintiff's own breach of duty to take reasonable care of herself constituted contributory negligence on her part, and therefore a complete bar to her recovery. The evident overall condition of the street area where she fell, shown by the photographs in evidence, would adequately warn any reasonable person that the surface was not ideal and would therefore oblige one to protect one’s self by looking at one’s intended path sufficiently closely to detect' the unevenness of the surface over which plaintiff tripped.

      . “We are responsible, not only for the damage occasioned by our act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.” La. Civ.Code, Art. 2317.


author: JONES, Judge.

text:
    E. M. IRONSMITH, III, Edward J. O’Brien, Jr., et al., Plaintiffs-Appellees, v. COUNTRY PLACE, INC., et al., Defendants-Appellants.
    No. 13841.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    En Banc. Rehearing Denied June 8, 1979.
    Writ Refused July 3, 1979.

      Hargrove, Guyton, Ramey & Barlow by Michael R. Mangham and Joseph L. Shea, Jr., Shreveport, for plaintiffs-appellees.
    Graham W. Rogers, Bossier City, for defendants-appellants.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiffs filed a motion to dismiss defendants’ appeal from an order overruling defendants’ exceptions of nonjoinder of necessary parties. The case is now submitted to us for decision on the motion to dismiss and on the merits. We dismiss the appeal and for that reason, have no jurisdiction to consider the merits.

Plaintiffs, E. M. Ironsmith, III and Edward J. O’Brien Jr., bring this action indi-, vidually and as representatives of Class A shareholders of Country Place Homeowners’ Association, Inc., (HOMEOWNERS) against Homeowners, the nonprofit corporation of which plaintiffs as homeowners in the subdivision are shareholders, Country Place, Inc., the developer of the subdivision, and James L. Larkin, L. C. Odom and W. D, Compton, officers and directors of both corporations. Plaintiffs allege Odom, Compton and Larkin have breached their fiduciary duty owed to Homeowners in numerous ways, the more important ones of which are (1) failing and refusing to collect annual assessments due Homeowners on each lot sold as required by Articles of Incorporation and Declaration of Covenants, Conditions and Restrictions, and are thereby liable for the assessments, and (2) failing and refusing to require Country Place, Inc. to convey to Homeowners all of the common area described to be the property of Homeowners in sales literature and filings with the FHA.

Defendants filed an exception of nonjoin-der of necessary party plaintiffs based upon C.C.P. Art. 611 asserting it is not impracticable to join all 205 homeowners and Class A shareholders of Homeowners. Defendants subsequently filed an exception of non-joinder of necessary party defendants (speculative builders who were lot owners) from whom the defendant corporate officers refused to collect the assessment. Defendants contend C.C.P. Art. 596 requires these parties be joined as defendants. The trial court overruled defendants’ exceptions of nonjoinder on the ground plaintiffs met the requirements for a class action.

Defendants appeal contending irreparable injury would result to them if the action was allowed to proceed as a class action and it was later determined on an appeal of the merits the trial court erred in permitting the suit to proceed as a class action.

ISSUE

Is the judgment overruling the exceptions of nonjoinder of necessary parties an interlocutory judgment which may cause irreparable injury and for that reason ap-pealable?

The judgment overruling the exceptions of nonjoinder is interlocutory because it does not determine the merits. C.C.P. Art. 1841.

The right to appeal an interlocutory judgment is contained in C.C.P. Art. 2083:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The defendants cite State of Louisiana ex rel. Guste v. General Motors Corp., 354 So.2d 770 (La.App. 4th Cir. 1978), cert. granted 356 So.2d 1005 (La.1978), affirmed 370 So.2d 477 (La.1979), wherein a judgment certifying a class action was held to be appealable, in support of their contention that the interlocutory judgment of the trial court certifying a class action may cause irreparable harm and is for this reason ap-pealable.

Plaintiffs seek to dismiss the appeal on the grounds the facts of the instant case are distinguishable from Guste and the interlocutory judgment here appealed will not cause irreparable harm.

Defendants contend they will suffer irreparable harm if a final determination of the propriety of the class action is not made at this point for if it is determined on an appeal on the merits not to have been a class action certain issues would be more difficult to determine at a later date when individual actions are filed, duplicitous litigation will occur, burden and expense of notice to the class will have occurred, court days will be wasted and other litigants will be delayed.

In State ex rel. Guste v. General Motors Corp., supra, that court found irreparable injury may result if a final determination is not made on the propriety of the class action before the trial for the following reasons (1) if the class action was later found improper the delay caused individual plaintiffs in the institution of their suits would make assessment of damages difficult because of depreciation of the automobiles and from defendant’s viewpoint depreciation would make proper evaluation of damages difficult, (2) the costs in that particular case would be overwhelming considering the number of court days to be set aside and notices required to be given by representatives of a class which consisted of 1,467 and delays resulting to litigants in other trials.

Defendants’ appeal meets none of the criteria set out in Guste. The amount to be assessed and collected from lot owners as provided for in the Declaration of Covenants, Conditions and Restrictions does not have a changing value. The common area which Country Place, Inc. allegedly agreed to transfer is described in letters to the FHA and in sales brochures and thus will not change. The potential class is small when compared to the class in Guste and to mail notice of the proposed class action to each member as required by Williams v. State, 350 So.2d 131 (La.1977) would not be costly or unduly burdensome. Plaintiffs individually have a right to sue the directors on behalf of the corporation to enforce obligations and duties set out in the Articles, By-Laws and Declaration of Covenants, Conditions and Restrictions. This right is common to each shareholder as an individual shareholder and as a member of Class A shareholders in Country Place Homeowners’ Association, Inc., and for this reason no court days will be wasted if a later determination is made that no valid class exists.

In the decision of Hunter v. Health & Social & Rehabilitation Services, 372 So.2d 577 (La.App. 2d Cir. 1979), we set forth the test to be used in determining whether an interlocutory judgment is appealable:

“The standard, as this court sees it, is not whether a possible procedural error in the course of litigation in the trial court may be corrected on appeal after trial on the merits, but is whether the procedural error will have such an effect on the merits of the case that the appellate court cannot correct an erroneous decision on the merits.”

Should judgment in this case be rendered against the defendants in favor of the plaintiffs individually and as representatives of a class and defendants appeal, if we should determine there was no class action we could reverse the judgment in favor of the class and thus correct the “erroneous decision on the merits”.

In the decision of Shaw v. Garrett, 295 So.2d 897, 899 (La.App. 2d Cir. 1974) the court made the following comments in discussing whether interlocutory judgments of the trial court overruling exceptions are appealable stated:

“The inconvenience and expense in having to answer and defend a lawsuit as a result of the trial court’s refusal to sustain exceptions has been held not to constitute irreparable injury sufficient to justify an appeal from an interlocutory judgment. See Waters v. Waters, 264 So.2d 275 (La.App. 4th Cir. 1972), and Stull v. Rosenfield’s House of Fashion, Inc., 220 So.2d 160 (La.App. 1st Cir. 1969).”

See also Mauterer v. Tillery, 328 So.2d 755, 756 (La.App. 1st Cir. 1976) wherein the court stated:

“It is well settled that the inconvenience and expense involved in a litigant’s having to answer and defend a lawsuit, as a result of a trial court’s refusal to sustain exceptions, does not constitute irreparable injury so as to support appeal from such a judgment prior to rendition of judgment on the merits . . . ”

If an interlocutory judgment which has the effect of overruling exceptions requiring a defendant to file an answer and go to trial is not considered as an interlocutory judgment which may cause irreparable injury, neither can the relatively less burdensome judgment wherein exceptions of nonjoinder of party plaintiffs and defendants are overruled be construed as one “which may cause irreparable injury”.

The reason for the rule which permits appeal of interlocutory judgments only in the case where there may be irreparable harm is to prevent a multiplicity of appeals in the same case. “Review and correction of every claimed trial court procedural error by the appeal process is neither desirable nor necessary. The result of that process would be piecemeal appeals and undue delay.” Hunter v. Health & Social & Rehabilitation Services, supra.

The interlocutory judgment appealed from “may not cause irreparable injury” as defined by our jurisprudence and is not appealable.

Since the interlocutory judgment in this case is not appealable, this court has no jurisdiction and cannot at this time pass on the correctness of the order overruling the exceptions of nonjoinder.

The appeal is DISMISSED at appellants’ cost.

      . C.C.P. Art. 611 — “When it is not impracticable for all of the shareholders or members of a corporation or unincorporated association to join or to be joined as parties to a secondary action to enforce a right of the corporation or unincorporated association which it refuses to enforce, all of the shareholders or members who refuse or fail to join as plaintiffs in such an action shall be joined as defendants.
      In all other respects, such an action is governed by the provisions of Articles 593 through 596.”

      . C.C.P. Art. 596 — “The petition in a class action brought by a shareholder or member of a corporation or unincorporated association because it refuses to enforce a right which it may enforce shall:
      (1) Allege that the plaintiff was a shareholder or member at the time of the occurrence or transaction of which he complains, or that his share or membership thereafter devolved on him by operation of law;
      (2) Allege with particularity the efforts of the plaintiff to secure from the managing directors, governors, or trustees and, if necessary, from the shareholders or members, the enforcement of the right; and the reasons for his failure to secure such enforcement; or the reason for not making such an effort to secure enforcement of the right;
      (3) Join as defendants the corporation or unincorporated association and the obligor against whom the obligation is sought to be enforced:
      (4) Include a prayer for judgment in favor of the corporation or unincorporated association and against the obligor on the obligation sought to be enforced; and
      (5)Be verified by the affidavit of the plaintiff or his counsel.”

      . C.C.P.. Art. 1841 — “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
      A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
      A judgment that determines the merits in whole or in part is a final judgment.”


text:
    James E. FRANKLIN, Plaintiff-Appellant, v. BRIDGES LOAN & INVESTMENT CO., INC., Defendant-Appellee.
    No. 13844.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    James E. Franklin, Jr., Shreveport, for plaintiff-appellant.
    D. G. Tyler, Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, James E. Franklin, appeals a judgment sustaining defendant’s, Bridges Loan & Investment Co., Inc., peremptory exception of one year prescription and dismissing plaintiff’s suit for damages caused by defendant’s loss of plaintiff’s collateral mortgage note. We affirm.

On July 23, 1972, plaintiff executed a collateral mortgage on his property securing an any future holder demand note in the amount of $20,500. Plaintiff forwarded to defendant what he called an interim loan package containing a certified copy of the recorded mortgage, the collateral mortgage note, a mortgage certificate, tax certificate, copy of survey, affidavit of no new construction and title opinion. Plaintiff then decided not to build upon the mortgaged property and obtained no loan from defendant.

Plaintiff filed this suit for damages more than one year after he discovered defendant had lost the collateral mortgage note. The trial court held plaintiff’s cause of action based upon defendant’s negligence was in tort and had prescribed.

The issue is does plaintiff’s petition state a contractual claim for damages and for this reason is not subject to the tort prescription of one year.

A party having an action for damages in contract and tort may elect which remedy he will pursue and the allegations of his petition taken as a whole will determine the character of plaintiff’s action. Federal Ins. Co. v. Ins. Co. of North America, 262 La. 509, 263 So.2d 871 (1972); La-Fleur v. Brown, 223 La. 976, 67 So.2d 556 (1953).

Plaintiff in brief contends defendant had an obligation to return the collateral mortgage note by virtue of a contractual relation entered between plaintiff and defendant wherein defendant was obligated to make the loan if plaintiff so desired.

In order for the plaintiff’s cause of action to be governed by a ten year prescription period, it is essential that it be based upon the contract of pledge because that is the nature of the contract which results from the borrowing of money secured by a collateral note. “The pledge is a contract by which one debtor gives something to his creditor as security for his debt.” C.C. Art. 3133. The pledgee is liable for loss of the thing pledged occasioned by his fault and the prescriptive period of ten years would be applicable for breach of this contractual obligation.

The only allegations in plaintiff’s petition directly relating to a loan from the defendant to be secured by the lost collateral note are:

“Thereafter, plaintiff, James E. Franklin, decided not to build on the lot and no draws were ever made on the interim loan.
That plaintiff, prior to the loan, had followed the same procedure on approximately fifteen to twenty-five loans . . . ” Tr. ± 6, 7, p. 3

Plaintiff makes no allegation, nor is there any evidence in the record, that the defendant ever promised him a loan, nor was there any hand note prepared and executed evidencing such a loan to be secured by the now lost collateral note.

In the decision of Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628, 630 (1972), the supreme court in discussing the collateral mortgage stated:

“A collateral mortgage is a mortgage designed, not to directly secure an existing debt, but to secure a mortgage note pledged as collateral security for a debt or a succession of debts. The mortgage is usually drawn in favor of future holders, represented by a nominal mortgagee. Por convenience in pledging, the companion promissory note is usually payable to bearer on demand. The maker may reissue the note from time to time. See LSA-R.S. 7:9; LiRocchi v. Keen, 242 La. 111, 134 So.2d 893 (1961); Mente & Co. v. Levy, 160 La. 496, 107 So. 318 (1926); Odom v. Cherokee Homes, Inc., La.App., 165 So.2d 855 (1964), cert. den. 246 La. 867, 167 So.2d 677; Woodward, Louisiana Notarial Manual, § 5.11, p. 132; § 5.25, pp. 151-156 (1953); 25 La.L.Rev. 789, 792-793 (1965).”

In the decision of New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252, 254 (La.App. 4th Cir. 1972), the court recognized that the collateral mortgage becomes viable when the hand note is executed:

“Its legal efficacy against third persons is contemporaneous with the execution of the hand note for the payment of which it is given in pledge.”

Neither the preparation and recor-dation of the collateral mortgage, nor the physical act of placing the collateral note and a certified copy of the mortgage in the hands of a possible lender, creates the contract of pledge. There must be a meeting of the minds between pledgor and pledgee concerning the transaction. The pledge is an accessorial obligation and normally cannot exist without a primary obligation. This rule is subject to an exception contained in C.C. Art. 3158. The exception has no application to the facts of this case because it only applies to a situation where a pledged collateral note remains in the hands of the pledgee after the obligation which it was given to secure has been extinguished by payment.

The plaintiff executed the lost note on July 13, 1972 and delivered it to defendant the same day. There is in the record a ledger sheet showing plaintiff’s loan transactions with defendant during the year of 1972 and it reflects that during the five month period from April 13 until September 12 plaintiff owed defendant no sums of money and the account was entirely dormant. There was • no indication on this ledger sheet or otherwise in the record of defendant having any contractual rights related to the lost note. The delivery of the note and other documents in the “interim loan package” did not create any contractual relationship between plaintiff and defendant. The very most these circumstances establish is preparation on the part of the plaintiff to borrow money from the defendant and preparation to pledge as security for the loan the collateral mortgage note which was later lost.

The trial judge was correct in holding that plaintiff’s cause of action was in tort and prescribed.

AFFIRMED at appellant’s cost.

      .C.C. Art. 3536 — “The following actions are also prescribed by one year: That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.
      That which a possessor may institute, to have himself maintained or restored to his possession, when he has been disturbed or evicted.
      That for the delivery of merchandise or other effects, shipped on board any kind of vessels.
      That for damage sustained by merchandise on board ships, or which may have happened by ships running foul of each other.”

      . C.C. Art. 3544 — “In general, all personal actions, except those before enumerated, are prescribed by ten years.”

      . C.C. Art. 3167 — “The creditor is answerable agreeably to the rules which have been established under the title: Of Conventional Obligations, for the loss or decay of the pledge which may happen through his fault.
      On his part, the debtor is bound to pay to the creditor all the useful and necessary expenses which the latter has made for the preservation of the pledge.”

      . C.C. Art. 1771 — “A principal contract is one entered into by both parties, on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; such as suretyship, mortgage and pledge.”
      C.C. Art. 3136 — “Every lawful obligation may be enforced by the auxiliary obligation of .pledge.”
      C.C. Art. 3138 — “If the obligation is null, so also is the pledge.”

      . Once the initial principal obligation to repay evidenced by a hand note has been created, C.C. Art. 3158 contemplates if the parties agreed at the time of the pledge that the collateral mortgage note would secure future advances and new or additional loans, the pledge will remain in existence although the initial debt has been extinguished and there is no principal obligation existing as long as the collateral mortgage note remains in the hands of the pledgee. Acadiana Bank v. Foreman, 352 So.2d 674 (La.1977).
      In New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252, 254 (La.App. 4th Cir. 1972) the court stated: “By Act 290 of 1952, the Legislature amended this article to impart a retrospective effect to all subsequent advances to the date of the initial loan, provided: (a) the initial pledge was properly confected; (b) each succeeding loan was specifically secured by a pledge of the instrument; (c) the parties had mutually agreed at the time of the original pledge that it would also secure any obligations or liabilities of the pledgor then existing or thereafter arising to the limit of the pledge; and (d) all of the aforegoing being subject to the pledged instrument continuously remaining in the hands of the pledgee and the parties acting in good faith at all times. The retroactive effect created by this statute may, by mutual consent, be made applicable not only to renewal of the primary loan but to new or additional loans, even though the original obligation has been fully paid, [emphasis added] Further, such renewals, subsequent loans, additional advances, or other obligations shall be secured by the collateral pledged to the same extent as if made at the time the initial loan and pledge was executed.”

      .C.C. Art. 3158 — “But this privilege shall take place against third persons only in case the pledge is proved by some written instrument, in which shall be stated the amount of the debt intended to be secured thereby, and the species and nature of the thing given in pledge; or the description of the thing pledged may be contained in a list or statement annexed to the instrument of pledge and giving its number, weight or descriptive marks.
      When a debtor wishes to pledge promissory notes, bills of exchange, bills of lading, stocks, bonds, policies of life insurance, or written obligations of any kind, he shall deliver to the creditor the notes, bills of exchange, bills of lading, stocks, bonds, policies of life insurance, or other written obligations, so pledged, and such pledge so made, except as hereinafter provided with regard to life insurance policies, shall without further formalities be valid as well against third persons as against the pledger thereof, if made in good faith, provided that where the pledge of instruments not negotiable, the debtor must be notified thereof, it being understood that no notification is required in the case of the pledge of certificates of corporation stock. All pledges may be made by private writing of any kind if only the intention to pledge be shown in writing, but all pledges, except of a life insurance policy in favor of the insurer, must be accompanied by actual delivery. . . it is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, and the pledged instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the-original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, without any added notification or other formality, and the pledge shall be valid as well against third persons as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations or liabilities shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them; . . . ”


author: MARVIN, Judge.

text:
    Caroline Neely WILLIAMS, Plaintiff-Appellee, v. David G. WILLIAMS, Defendant-Appellant.
    No. 13846.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    Writ Refused June 15, 1979.

      Michael Harson, Lafayette, for defendant-appellant.
    Fredric Hayes, Inc. by Fredric G. Hayes, Lafayette, for plaintiff-appellee.
    Shotwell, Brown & Sperry by George Wear, Jr., Monroe, for Michigan Wisconsin Pipe Line Co., garnishee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

A defendant judgment debtor, against whom a Louisiana alimony judgment was made executory, intervened in this garnishment proceeding against his out-of-state employer, claiming his wages, earned and paid out of state, are exempt from garnishment under R.S. 13:3951. The lower court rejected the intervenor’s demands. We affirm.

Intervenor raises several issues on appeal, all based on the premise that he is a resident of Texas, that his employer is a Michigan corporation, and that his wages were earned and paid in Texas. The corporate employer, however, has a Louisiana agent for service of process and is authorized to do business here. The intervening defendant personally appeared "and contested the initial alimony proceedings and the proceedings which made the judgment executory in the parish of the former marital domicile.

A foreign corporation doing business in a state where it has appointed an agent for service of process may be sued in that state as if it were a resident corporation. C.C.P. 2416, 42(4). Debts due from such corporations are subject to garnishment in that state. Sanders v. Armour Fertilizer Works, 292 U.S. 190, 54 S.Ct. 677, 78 L.Ed. 1206 (1934); Louisville & N. R. Co. v. Deer, 200 U.S. 176, 26 S.Ct. 207, 50 L.Ed. 426 (1906); Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905). See also Globe & Rutgers Fire Ins. Co. of New York v. Brown, 52 F.2d 164 (W.D.La.1931).

We are to determine whether or not the judgment creditor’s cause of action arose out of this state because of the exemption in R.S. 13:3951:

“Wages earned out of this state and payable out of this state shall be exempt from attachment or garnishment in all cases where the cause of action arose out of this state . .” (emphasis supplied)

A cause of action is the state of facts which entitles a litigant to sustain an action. Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975). A suit to make past due alimony executory is not a suit simply for a money judgment or a debt, but is an incident of the original divorce or separation proceeding which ordered the alimony payable. See Williams v. Williams, 211 La. 939, 31 So.2d 170 (1947). Further proceedings in execution of that judgment are also incidents of the original proceeding in which alimony was ordered paid. C.C.P. 3941, 3945, 2411-2417.

The cause of action in R.S. 13:3951 is the original state of facts which entitled the judgment creditor to sustain her action for alimony. This cause of action arose in Louisiana where the judgment creditor and her husband last lived together as man and wife. The cause of action did not arise out of this state and the judgment debtor may not claim benefit of the exemption in R.S. 13:3951.

We are not concerned with where the periodical alimony, which the intervenor equates to an ordinary debt under C.C. 2157, may have been payable. Alimony is not technically a debt, even though it is enforceable by the writ of fieri facias when reduced to an executory judgment. See Cotton v. Wright, 193 La. 520, 190 So. 665 (1939).

At intervenor’s cost, judgment is affirmed.

      . Intervenor argues that such a debt under C.C. Art. 2157 would have been payable only at his “dwelling” in Texas and that the cause of action, therefore, arose in Texas. Intervenor overlooks the fact that his obligation to pay alimony arose as an incident of the marriage and the wife’s grounds for its dissolution. The judgment as to these matters was long along final and definitive. This controversy concerns the execution of the judgment under the writ of fifa and is, in essence, between the employer-garnishee and the judgment creditor, subject of course to the legal exemption afforded the judgment debtor. See Comment, “Garnishment in Louisiana”, 18 La.L.Rev. 446.


author: HALL, Judge.

text:
    I. H. TIDWELL, Plaintiff-Appellee, v. Verdiacee W. GOSTON and John Goston, Defendants-Appellants.
    No. 13847.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    En Banc. Rehearing Denied June 8, 1979.

      Robert P. McLeod, Monroe, for defendants-appellants.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.

       JONES, J., took no part in denial of rehearing.

   HALL, Judge.

Defendants appeal from a judgment sustaining plaintiff’s exception of no cause of action to defendants’ petition for the arrest and injunction of the seizure and sale of defendants’ property under plaintiff’s foreclosure by executory process. The exception was filed and sustained after the property was sold at public sale. We affirm because defendants’ cause of action became moot after the property was sold.

Plaintiff filed a petition for executory process and the seizure and sale of certain property mortgaged to secure a note issued by defendants. The property was seized on May 2, 1978 and notice of seizure and sale was personally served on the defendants May 4, 1978. A petition for injunction to arrest the seizure and sale under executory process was filed by defendants June 22, 1978. It basically alleged payment in accordance with the terms of the note and prayed for a temporary restraining order, preliminary and permanent injunctions. The trial judge signed an order for plaintiff to show cause on July 20, 1978 why the seizure and sale should not be revoked and possession restored to defendants. The order did not grant or order the issuance of a temporary restraining order. However, on the same day a temporary restraining order was signed and issued by the deputy clerk of court. On July 19, 1978 plaintiff obtained an ex parte order vacating the temporary restraining order. In any event, the temporary restraining order had expired by the passage of ten days. LSA-C.C.P. Art. 3604. The contradictory motion set for July 20, 1978 was upset and refixed for August 24, 1978. On that date evidence was adduced in part and then the hearing was continued to September 18, 1978.

The sheriff’s return reveals the property was adjudicated at public sale to plaintiff on September 6, 1978. A writ of possession was issued September 12, 1978. On joint motion of the parties the hearing of September 18, 1978 was continued to September 21, 1978 at which time plaintiff filed an exception of no cause of action on the grounds that defendants’ demands were moot because the sheriff’s sale had already taken place. The trial judge signed the judgment sustaining the no cause of action on September 26, 1978. Defendants were granted a devolutive appeal.

In brief to this court, defendants, now represented by another attorney, argue that (1) it was error for the trial court to vacate without notice the temporary restraining order on which defendants were relying to protect their interest; (2) it was error not to grant the defendants a full evidentiary hearing on their contention that the sale should not be made; and (3) these errors amount to defects in the executory procéed-ings requiring the sale to be set aside.

Regardless of the validity of the temporary restraining order signed and issued by the deputy clerk of court, and regardless of the validity of the ex parte order setting it aside, the temporary restraining order expired after ten days under LSA-C.C.P. Art. 3604. There was no order in effect restraining the sheriff from proceeding with the sale.

Defendants were not denied an evidentia-ry hearing prior to the sale. Evidence was taken in part on August 24. It is not shown that defendants objected to the continuance of the hearing on that date. Defendants joined in a later motion to again continue the hearing.

Defendants, represented by counsel, did not take available procedural steps to prevent the sale or to secure a full evidentiary hearing prior to the sale.

Defendants’ demand to arrest or enjoin the sale became moot after the sheriff’s sale took place. Culpepper v. Natchitoches Parish School Board, 333 So.2d 453 (La.App. 3d Cir. 1976), writs denied 338 So.2d 289 (La.1976); Barnes v. City of Hammond, 276 So.2d 746 (La.App. 1st Cir. 1973); Allen v. Commercial National Bank in Shreveport, 138 So.2d 252 (La.App. 2d Cir. 1962), affirmed 243 La. 840, 147 So.2d 865 (1962); Walters v. Childers, 214 La. 531, 38 So.2d 160 (1948); Rourke v. Coursey, 334 So.2d 480 (La.App. 3d Cir. 1976); Choate v. Cofield, 164 So.2d 601 (La.App. 3d Cir. 1964). The trial court properly sustained plaintiff’s exception of no cause of action and dismissed the petition for arrest and injunction of the sale. Any cause of action defendants may have to annul and set aside the sale for substantive irregularities in the proceedings must be asserted in a direct action seeking this relief. Reed v. Meaux, 292 So.2d 557 (La.1974); Alison Mtg. Inv. Tr. v. Commercial Leas. & Fin. Co., Inc., 334 So.2d 705 (La.App. 3d Cir. 1976). The instant proceeding is not such an action and does not seek such relief.

The judgment of the district court is affirmed at appellants’ costs.

Affirmed.