author: SUMMERS, Justice. DENNIS, Justice,

text:
    Harold E. DRIPPS and Pearl Irene Dripps v. Maxie Ann DRIPPS.
    No. 62185.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Concurring Opinion Jan. 26, 1979.
    Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield, Lake Charles, for defendant-appellant.
    Raggio, Farrar, Cappel & Chozen, Stephen A. Berniard, Jr., Lake Charles, for plaintiff s-appellees.
   SUMMERS, Justice.

Walter Eugene Dripps and Maxie Ann Dripps were husband and wife. Two children were born of this union, Jason Harold and Jennifer Amanda. Walter Eugene Dripps died on March 11, 1975. In addition to his wife and the two minor children, he was survived by his father and mother, Harold E. and Pearl Irene Dripps.

At that time Section 572 of Title 9 of the Revised Statutes, insofar as pertinent here, provided that if one of the parties to a marriage died, and there were minor children of such a marriage, the parents of the deceased, without custody of the children, could have reasonable visitation rights to the children of the marriage -during their minority, if the court in its discretion found that such visitation rights would be in the best interest of the children.

Relying upon this authority Harold E. and Pearl Irene Dripps, paternal grandparents of the minor children, filed a petition in the Calcasieu Parish District Court on June 1, 1977 seeking a judgment establishing reasonable visitation privileges with the minor children. A rule was issued commanding Maxie Ann Dripps to show cause why reasonable visitation privileges should not be granted to the paternal grandparents of the minor children.

Prior to a hearing on this rule, on July 1, 1977, Maxie Ann Dripps, the mother of the children, married James Kerney Sonnier. When the hearing was held on July 20,1977 the mother agreed and stipulated that the grandparents would have certain visitation rights with the children. The agreement was incorporated into a judgment officially rendered by the trial judge on July 22,1977.

Thereafter, on September 16, 1977, the District Court in St. Landry Parish approved the adoption of the minors Jason Harold and Jennifer Amanda Dripps by James Kerney Sonnier, and the court ordered that the names of the minors be changed to Jason Harold and Jennifer Amanda Sonnier.

Then, on October 24, 1977, James Kerney Sonnier and his wife, the former Maxie Ann Dripps, ruled the grandparents, Harold E. and Pearl Irene Dripps, into court in Calca-sieu Parish to show cause why the visitation rights granted in the July 22, 1977 judgment should not be revoked as a result of Sonnier’s marriage to Maxie Ann. Dripps and by virtue of the fact that Sonnier became the adoptive father of the children subsequent to the decree granting visitation rights to the grandparents.

To support this position the Sonniers rely. upon the authority of Article 214 of the Civil Code as it existed at the time. Insofar as pertinent here, the Article provides that the adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent. The article further provides that if the adoptive parent is married to a blood parent of the adopted person, the relationship of the blood parent and blood relatives of the adopted person are unaffected by the adoption. Otherwise, upon adoption, the blood parent or parents and all other blood relatives of the adopted person are relieved of all their legal duties and divested of all of their legal rights with regard to the adopted person.

On March 3,1978 the trial judge rendered judgment in favor of the grandparents, rejecting the demands of the Sonniers that visitation rights of the grandparents be revoked. The Sonniers appealed to the Third Circuit. While the case was pending there the trial judge filed written reasons for his judgment of March 3, 1978, in which he declared that Article 214 of the Civil Code was unconstitutional as applied in this case.

Upon receipt of the reasons assigned by the trial judge, the Sonniers moved that their appeal be transferred to this Court, the trial court having declared a law of this State unconstitutional. The motion to transfer was unopposed and the appeal was transferred to this Court on May 3, 1978 as required by Section 5(D) of Article V of the Constitution mandating that appeals shall be to the Supreme Court if a law or ordinance has been declared unconstitutional.

In the legislative session then in progress, Article 214 of the Civil Code was amended by Act 458 of 1978, effective September 8, 1978. Article 214 was unchanged by the amendment except to provide that when the adoptive parent was not married to a blood parent of the adopted person, the blood parent or parents and all other blood relatives of the adopted person were relieved of all of their legal duties and divested of all their legal rights with regard to the adopted person, except as provided in Section 572(B) of Titie 9 of the Revised Statutes. In the same Act, Section 572 was amended by adding sub-section (B) as follows:

“Notwithstanding any provision of law to the contrary contained in Article 214 of the Louisiana Civil Code, in the event of an adoption, the natural parents of a deceased party to a marriage dissolved by death may have limited visitation rights to the minor child or children of the marriage dissolved by death; provided the natural parents of a deceased party prove that they have been unreasonably denied visitation rights and such limited visitation rights would be in the best interest of the minor child or children; and provided further, that the adoption takes place after the parent whose parents are seeking visitation rights is deceased. The court shall consider all relevant factors in reaching a conclusion, including without limitation psychological evaluation, and it may order an investigation by the Department of Health and Human Resources.” (See footnote 3)

In substance the amendments are designed to provide that the natural parents of a deceased parent of minor children who have been adopted may have limited visitation rights under certain circumstances.

These amendments, if applicable to the facts of this case, would entitle the paternal grandparents in the case at bar to limited visitation rights, notwithstanding the fact that the children are considered for all purposes as the legitimate children of the adoptive father by the terms of Article 214 of the Civil Code, provided the grandparents were able to establish certain prerequisites set forth in Section 572(B).

The grandparents urge in their brief dated July 6, 1978, that the foregoing amendments, which at that time had been passed by the legislature but not yet signed by the Governor, are retroactively applicable to this case when enacted and promulgated. If signed by the Governor, they assert, the issues presented to this Court would become moot. According to the authorities they cite, these amendments are curative in character. As curative legislation these enactments are applicable to cases on appeal, even though the facts and circumstances in litigation were ruled upon in the trial court prior to passage of the amendments. As amended, according to the grandparents, Article 214 of the Civil Code and Section 572(B) of Title 9 of the Revised Statutes adopt the public policy arguments presented in their brief.

In support of the claim that the issues of this case are moot they cite the decisions of the Second Circuit in Jackson v. Jackson, 275 So.2d 456 (La.App.1973) and Fullilove v. U.S. Casualty Co. of New York, 129 So.2d 816 (La.App.1961). No answer to this contention is presented by the Sonniers. The issue thus presented stands at the threshold of this case.

In Jackson v. Jackson the Second Circuit considered a suit for reduction of alimony and support awarded to a wife and four minor children. The case was tried on May 4, 1971 and judgment was rendered on October 4, 1972, reducing the alimony and support awards. In the interim between the trial date and rendition of judgment, Article 37 of the Civil Code was amended to prescribe that persons of the age of eighteen were to be considered of full age of majority, fully emancipated and adults.

In its review the Court of Appeal held:

“The trial judge correctly applied the latest expression of the law to the ease by basing his decision as to support for . . . [the children over eighteen] on the amendment to Article 37. Likewise, this court must decide this appeal by applying the law as it now exists and not on the basis of what the law may have been at the time of the trial of the case. It is the duty of an appellate court to adjudge a case before it in accordance with the law existing at the time of its own decision, even if it requires reversing a judgment that was entirely proper at the time of its rendition.”

A similar conclusion was reached in Fullilove v. U.S. Casualty Co. of New York, where a constitutional amendment authorizing the legislature to waive the State’s immunity from liability, as well as immunity from suit, operated retrospectively. Cf. Juneau v. City of Shreveport, 146 So.2d 245 (La.App.1962) and Musgrove v. Calcasieu Parish Police Jury, 200 So.2d 344 (La.App.1967).

In a 1946 decision in Allison v. Wideman, et al., 210 La. 314, 26 So.2d 826, this Court held that the suits of coproprietors of mineral rights in land were abated by the enactment of a statute providing that the liberative prescriptive period for adult parties owning jointly with minors, would not be extended beyond ten years because of joint ownership with minors. The adults had claimed the minerals for more than ten years and the land was therefore released from the mineral servitude. This holding effectively held that a law, which was changed during the pendency of a suit, could be applied by this court even though it involved the reversal of a trial court decision based upon the law which existed at the time of its decision.

In Hymel v. Central Farms & Shipping Co., 183 La. 991, 165 So. 177 (1935), this Court abated an appeal from a judgment rejecting an application for moratorium. The statute considered in the decision was repealed and superseded by a statute enacted after the decision in the trial court. In the unanimous opinion Chief Justice O’NIELL wrote:

“It is well settled also that, if the law on which a judicial proceeding is founded is repealed, or superseded and in effect repealed, by a statute enacted while the proceeding is pending in court, the proceeding is thereby abated. Todd v. Landry, 5 Mart. (O.S.) 459, 12 Am.Dec. 479; State v. Johnson, 12 La. 547; Cooper v. Hodge, 17 La. 476; Frey v. Hebenstreit, 1 Rob. 561; Doss v. Board of Commissioners of Mermentau Levee District, 117 La. 450, 41 So. 720; Western Union Telegraph Co. v. Louisville & Nashville R. Co., 258 U.S. 13, 42 S.Ct. 258, 66 L.Ed. 437; United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510.”

A wife brought suit involving a claim to paraphernal property in Garlick v. Dalbey, 147 La. 18, 84 So. 441 (1920). Her right to sue without the authorization of her husband was put at issue in defendant’s answer. After final judgment in the trial court, Act 94 of 1916 was enacted dispensing married women from the necessity of being authorized by their husbands to stand in judgment in matters relating to their paraphernal property. Because the case had been fully tried below as though the wife had authority to stand in judgment, this Court found no reason why the case should not be finally disposed of on appeal. In doing so the Court recognized the applicability of Act 94 of 1916 to the case pending before it.

This Court has held that if judgment be correctly given under a law which is repealed pending the appeal, this Court is bound to reverse it. State v. Johnson, 12 La. 547 (1838). And this principle was approved and applied in Cooper v. Hodge, 17 La. 476 (1841), where plaintiff sought an order to render defendant liable on the bail of one M. Hunt against whom plaintiff had obtained judgment and sought unsuccessfully to obtain satisfaction. The object of the bail was to produce Hunt for imprisonment until the debt was satisfied. Defendant contended that he was released from any obligation on the bail bond by the act abolishing imprisonment for debt which was enacted during the pendency of the proceedings. The trial judge was of the opinion that on repeal of a law every proceeding begun but not perfected under it, becomes absolutely void. With this opinion this Court agreed. See also Frey v. Hebenstreit, 1 Rob. 561 (La.1842).

Taxpayers sued to restrain a levee board from taking any action under an act of the legislature authorizing the board to organize on the grounds that the act was unconstitutional. During the pendency of the proceeding the legislative act authorizing the board to organize was repealed. This Court dismissed the suit. Doss v. Board of Commissioners of Mermentau Levee District, 117 La. 450, 41 So. 720 (1906).

Although the point has not been argued, this case cannot be decided without considering the effect of Article 8 of the Civil Code. That Article provides that “A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.” The concept of nonretroactivity of legislation is also embodied in Section 23 of Article I of the Constitution prohibiting the enactment of ex post facto laws.

The principle thus established is the necessary safeguard of individual interest. There would be no security for private persons, if their rights,' their fortune, their personal status, the effects of their acts and of their contracts, could be questioned, modified or suppressed at any moment because the lawmaker had changed his mind. The general interest, which is here but the aggregate of individual interest, therefore requires that what has been done regularly under the aegis of the law, be considered valid, and consequently, that it remain stable, even after a change in legislation. Pla-niol, Vol. 1, No. 240, Treatise on the Civil Law (12 ed. 1939).

Although well-established, the principle of non-retroactivity is subject to exceptions.

Some changes in the law are applicable to all situations, past, present and future. Laws which determine jurisdiction and procedure are applicable, from the date of their promulgation, to all law suits, even to those which bear upon facts and acts of a prior date. They even apply to pending law suits as the decisions already cited demonstrate. These laws are remedial in character concerned with procedure, not substantive rights. They do not impair the obligations of contracts. Planiol, Vol. 1, No. 258.

Another example is interpretive laws which determine the meaning of existing laws. In a sense they explain and interpret existing laws or- add to them provisions which the lawmaker believes to be salutary. In such a case it is not the interpretive law but the original which applies. These laws are curative in character, and the line between this intention of the lawmaker and the enactment of new provisions is tenuous and may result in eroding the principle of non-retroactivity. Planiol, Vol. 1, No. 251.

When the intervention of a court is necessary to bring about a juridical solution (for instance a decree revoking visitation rights as in this case) there will be no retroactivity and the court will apply.the law in force at the time the judgment is pronounced. The visitation rights at issue here have not been exercised completely; there is an expectation that they will be exercised in the future during the duration of the law as amended by Act 458 of 1978. Exercise of these rights in the future, therefore, are properly the province of the legislature to regulate. What has transpired in the past in this regard is not affected.

Our decisions have embodied these principles and we find them applicable to the problem before us.

Accordingly, for the reasons assigned, this case is remanded to the trial court for consideration in the light of the amendments to Article 214 of the Civil Code and Section 572 of Title 9 of the Revised Statutes as contained in Act 458 of 1978. In particular, the court on remand shall hold a hearing without delay to determine the right of the natural parents of the deceased natural father to limited visitation rights with the minor children. Limited visitation rights may be granted provided the natural parents of the deceased natural father of the children have been unreasonably denied visitation rights and such limited visitation rights would be in the best interest of the minor children. The court shall consider all relevant factors in reaching a conclusion, including, without limitation, psychological evaluation, and it may order an investigation by the Department of Health and Human Resources.

DENNIS, J., concurs and assigns reasons.

APPENDIX

1. La. Rev.Statute 9:572

§ 572. Visitation rights of grandparents If one of the parties to a marriage dies, or the obligation to live together is terminated by an action of separation from bed and board or the marriage is terminated by divorce, and there is a minor child or children of such marriage, the parents of the deceased, or separated, or divorced party without custody of such minor child or children, may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

Added by Acts 1972, No. 4, § 1; Amended by Acts 1975, No. 614, § 1.

2. La. Civil Code Art. 214

Art. 214. Reciprocal rights and duties of adopter and adopted

Art. 214. Married persons must concur in the adoption of another person. One of them cannot adopt without the consent of the other.

The adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent or parents, including the right of the adopted person or his lawful descendants to inherit from the adoptive parent or parents or the relatives of the latter by blood or by adoption, and the right of the adoptive parent or parents or the relatives of the latter by blood or by adoption to inherit from the person adopted or his lawful descendants, in the same manner and to the same extent as if the person adopted were in fact the legitimate child of the adoptive parent or parents.

If the adoptive parent is married to a blood parent of the adopted person, the relationship of that blood parent and his blood relatives to the adopted person shall remain unaltered and unaffected by the adoption. Otherwise, upon adoption: the blood parent or parents and all other blood relatives of the adopted person are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, including the right of inheritance from the adopted person and his lawful descendants; and the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all of their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them. (As amended Acts 1958, No. 514, § 1.)

3. Act 458 of 1978

An Act to amend and reenact Article 214 of the Louisiana Civil Code and Section 572 of Title 9 of the Louisiana Revised Statutes of 1950, to provide that the natural parents of a deceased parent of a minor child or children who have been adopted may have limited visitation rights under certain circumstances.

Be it enacted by the Legislature of Louisiana:

Section 1. Article 214 of the Louisiana Civil Code and Section 572 of Title 9 of the Louisiana Revised Statutes of 1950 are hereby amended and reenacted to read as follows:

Art. 214. Reciprocal rights and duties of adopter and adopted

Art. 214. Married persons must concur in the adoption of another person. One. of them cannot adopt without the consent of the other.

The adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent or parents, including the right of the adopted person or his lawful descendants to inherit from the adoptive parent or parents or the relatives of the latter by blood or by adoption, and the right of the adoptive parent or parents or the relatives of the latter by blood or by adoption to inherit from the person adopted or his lawful descendants, in the same manner and to the same extent as if the person adopted were in fact the legitimate child of the adoptive parent or parents.

If the adoptive parent is married to a blood parent of the adopted person, the relationship of that blood parent and his blood relatives to the adopted person shall remain unaltered and unaffected by the adoption. Otherwise, upon adoption: the blood parent or parents and all other blood relatives of the adopted person, except as provided by R.S. 9:572(B) are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, including the right of inheritance from the adopted person and his lawful descendants; and the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all of their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them.

§ 572. Visitation rights of grandparents

A. If one of the parties to a marriage dies, or the obligation to live together is terminated by an action of separation from bed and board or the marriage is terminated by divorce, and there is a minor child or children of such marriage, the parents of the deceased, or separated, or divorced party without custody of such minor child or children, may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

B. Notwithstanding any provision of law to the contrary contained in Article 214 of the Louisiana Civil Code, in the event of an adoption, the natural parents of a deceased party to a marriage dissolved by death may have limited visitation rights to the minor child or children or the marriage dissolved by death; provided the natural parents of a deceased party prove that they have been unreasonably denied visitation rights and such limited visitation rights would be in the best interests of the minor child or children; and provided further, that the adoption takes place after the parent whose parents are seeking visitation rights is deceased. The court shall consider all relevant factors in reaching a conclusion, including without limitation psychological evaluation, and it may order an investigation by the Department of Health and Human Resources.

Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.

Section 3. All laws or parts of laws in conflict herewith are hereby repealed.

Approved July 10, 1978.

DENNIS, Justice,

concurring.

While I agree with the result reached by the majority, I believe that La. R.S. 9:572 (1975) entitled the grandparents to reasonable visitation rights to the minor children if such visitation rights were found to be in the best interests of the children. Thus the retroactivity question need not have been considered.

      . A full copy of the statute is contained in an appendix to this opinion.

      . A full copy of Article 214 prior to its amendment is contained in an appendix to this opinion.

      . The complete text of Act 458 of 1978 appears in the appendix.


source: Caselaw Access Project

author: DENNIS, Justice. SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Newton BROWN.
    No. 62616.
    Supreme Court of Louisiana.
    Jan. 8, 1979.

      Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The question presented by this case is whether a person who lawfully obtains a dose of methadone from the Louisiana Narcotics Rehabilitation Commission while participating in an experimental pilot clinic program is guilty of illegal possession of methadone if he carries the methadone off the clinic premises without permission.

Defendant Newton Brown was charged by bill of information with possession of methadone, La.R.S. 40:967, and convicted by a six-person jury of attempted possession of a controlled dangerous substance. The defendant was adjudged a multiple offender, La.R.S. 15:529.1, and sentenced to serve nine years at hard labor.

Defendant relies on three assignments of error in appealing his conviction and sentence. Because we find reversible error in the first assignment of error, the remaining assignments are pretermitted.

At approximately 9:45 a. m. on May 5, 1975, while on patrol near the intersection of Baronne and Melpomene Streets in New Orleans, Officers Van Dalen and Cavilar saw Newton Brown, the defendant. Officer Van Dalen, a part-time employee at a nearby methadone rehabilitation clinic, had been informed that Brown, a patient of the clinic, on occasion had smuggled some of his methadone from the premises. The methadone clinic is one of several facilities established by the Louisiana Narcotics Rehabilitation Commission to aid in the prevention and correction of narcotic addition. Among its other functions, the commission is authorized to carry on programs for the administration, under medical supervision, of methadone to addicts as a substitute for narcotic or addictive drugs.

When the officers observed him on the morning of May 5,1975, Brown was holding a Coca-Cola bottle. Officer Van Dalen questioned Brown about his activities and the defendant replied that he had just come from the rehabilitation clinic. The officer took the bottle and, holding it up to the light, noticed a reddish tint in the liquid with which it was partly filled. Since Van Dalen knew that the rehabilitation clinic administered methadone in a bright pink syrup, he suspected that the reddish tint was caused by methadone. The officers searched the defendant, informed him of his constitutional rights, and placed him in the police car. The defendant was formally arrested an hour and a half later when the laboratory results confirmed that the bottle contained methadone.

In his first assignment of error the defendant urges that the evidence seized should have been suppressed because it was obtained as a result of an unlawful arrest. Possession of a Schedule II controlled dangerous substance, the crime of which the defendant was suspected, and for which he was arrested, is defined by La.R.S. 40:967(C), as follows:

“It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this part. Any person who violates this subsection shall be imprisoned with or without hard labor for not more than five years; and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.”

The statute referred to in the crime definition, La.R.S. 40:978, in pertinent part, provides:

“A. Except when dispensed or administered directly by a medical practitioner or administered by a person authorized to administer by such practitioner, other than a pharmacist, to an ultimate user, no controlled dangerous substance included in Schedule II, which is a prescription drug as determined under the Louisiana Revised Statutes, may be dispensed or administered without the written prescription of a practitioner, except that in emergency situations, as prescribed by the State Board of Health by regulation, such drug may be dispensed or administered upon oral prescription reduced promptly to writing and filed by the pharmacist. Prescriptions shall be retained in conformity with the requirements of R.S. 40:976. No prescription for a Schedule II substance may be refilled.”

Accordingly, under the exceptions provided by the statutes, it is permissible for a person to possess a Schedule II controlled dangerous substance if he obtains it directly, or pursuant to a valid prescription order from a practitioner (La.R.S. 40:967(C)) or if it is dispensed or administered directly to him by a medical practitioner or administered by a person authorized to administer by such practitioner, other than a pharmacist, to an ultimate user. (La.R.S. 40:978(A)).

It is not disputed that the methadone found in Brown’s possession was given to him for his ultimate use and consumption by the Louisiana Narcotics Rehabilitation Commission at one of its clinics established for that purpose. Since the prosecution did not present evidence to the contrary, it is presumed that the commission acted lawfully in administering the methadone to the defendant. Therefore, from the record before us we must conclude that the commission, in fact, administered the drug according to La.R.S. 40:1052, which, in pertinent part, provides:

“[The Louisiana Narcotics Rehabilitation Commission] is authorized to establish, direct and carry on experimental pilot clinic programs for the treatment and rehabilitation of narcotic addicts, which programs may include the administration, under medical supervision and control, of methadone or other drugs as a substitute for narcotic or addictive drugs. * * *” (emphasis added)

Since the commission’s administration of methadone, under medical supervision and control, for the treatment and rehabilitation of a narcotic addict necessarily involves the administration of such drugs by a physician or under the direction of a physician, the receipt and possession of methadone under these circumstances falls within the express exception of La.R.S. 40:967 and is therefore lawful.

Accordingly, possession of methadone, when obtained by a person under medical supervision and control, as part of a program for the treatment and rehabilitation for narcotic addicts administered by the Louisiana Narcotics Rehabilitation Commission is not a crime. Although the prosecution introduced evidence that the commission has adopted regulations limiting the circumstances under which an addict may carry methadone off clinic premises, there is no statute or constitutional provision by which this conduct is defined as criminal.

There is no evidence that the arresting officers had any reason to believe that the initial administration of the methadone to Brown was unlawful. Consequently, the officers had no probable cause to suspect or believe that Brown was engaged in criminal activity at any time during their encounter with him. Thus, the investigatory stop, the seizure of the soft drink bottle and the arrest of Brown were all constitutionally invalid. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Washington, 364 So.2d 958 (La.1978); State v. Davis, 359 So.2d 986 (La.1978); State v. Sims, 350 So.2d 1189 (La.1977); State v. Smith, 347 So.2d 1127 (La.1977); State v. Kinneman, 337 So.2d 441 (La.1976); State v. Saia, 302 So.2d 869 (La.1974). If the officers had acted upon specific and articulable facts within their knowledge indicating that defendant had obtained the methadone without medical supervision, or that he possessed the drug with the intent to distribute it, the policemen would have had reasonable cause to suspect Brown of criminal activity and the right to stop him for questioning. See, Terry v. Ohio, supra; State v. Matthews, supra; State v. Washington, supra; State v. Davis, supra; State v. Sims, supra; State v. Smith, supra; State v. Kinneman, supra; State v. Saia, supra. However, the state has the burden of proving that the warrant-less search and seizure was justified under one of the narrow exceptions to the warrant requirements, State v. Franklin, 353 So.2d 1315 (La.1978), and the prosecution failed to educe any evidence that the officers had information that Brown obtained the drugs illegally or intended to use them for an unlawful purpose.

Consequently, the defendant’s motion to suppress should have been granted, and his conviction and sentence which were based on the illegally obtained evidence must be reversed. Furthermore, it is clear as a matter of law that the jury could not properly have returned a verdict of guilty because the entire proof assembled by the state does not constitute any evidence of the charged offense. Under circumstances in which a defendant’s conviction has been overturned due to a total lack of evidence as to an essential element of the crime, as distinguished from reversal for a trial error, the Double Jeopardy Clause precludes a second trial and requires the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); cf. State v. Allien, 366 So.2d 1308 (La.1978).

For the reasons assigned, the defendant’s conviction and sentence are reversed and a judgment of acquittal is entered in his favor.

REVERSED; JUDGMENT OF ACQUITTAL RENDERED.

SUMMERS, C. J., dissents for the reasons assigned.

MARCUS, J., dissents for reasons assigned by SUMMERS, C. J.

SUMMERS, Justice

(dissenting).

Section 978 of Title 40 of the Revised Statutes prescribes the general rule that controlled dangerous substances may not be dispensed or administered without prescription.

It is significant, therefore, that Section 1052 of Title 40 regulating the use of methadone only authorizes the Louisiana Narcotic Rehabilitation Commission to administer that substance under medical supervision and control. The omission is meaningful. As used in the context of the statutes under consideration and when applied to a program for rehabilitation of drug addicts, administering methadone under medical supervision and control does not imply the dispensation of that drug for use or possession off the premises; nor does the statute imply that methadone is a “prescription” drug, which would permit possession of it beyond the limits of medical supervision and control. To administer as used there is, according to Webster’s Third New International Dictionary, “to give remedially (as medicine) (the amount of the antitoxin administered is determined by the doctor.)” On the other hand, to dispense is “to prepare and distribute (medicines) to the sick.” Administer and dispense have different meanings. Section 1052 refers to administering, not dispensing the drug.

As I read the statute methadone must be administered under medical supervision and control. It may not be merely dispensed to addicts.

Thus the police had ample cause to arrest the defendant for they correctly understood the law to mean that methadone must be consumed on the premises of the clinic where medical supervision and control existed — not on the streets; they had been told by a reliable informant that defendant was taking methadone out of the clinic, contrary to law; and they confirmed the fact that defendant was in possession of methadone when they viewed the Coke bottle and noticed a reddish tint to the liquid content. Officer Van Dalen knew the rehabilitation clinic administered methadone in a bright pink syrup.

I would affirm the conviction.

      . Methadone is a “prescription drug”. Schedule II substances are designated as having a “currently accepted medical use in treatment.” La.R.S. 40:963(B)(2). “Prescription” is defined as “a written request for a drug or therapeutic aid issued by a licensed physician, dentist, veterinarian, osteopath, or podiatrist for a legitimate medical purpose.” La.R.S. 40:961(30). Therefore, by authorizing the dispensation of methadone under medical supervision and control as part of rehabilitation and treatment programs, the legislature tacitly, if not expressly, designated methadone as a “prescription drug.”

      . La.R.S. 14:7 provides that “[a] crime is that conduct which is defined as criminal in this code, or in other acts of the legislature, or in the constitution of this state.”

      . Even legal possession of a Schedule II controlled dangerous substance, if “with intent to produce, manufacture, distribute or dispense,” is prohibited. La.R.S. 40:967(A)(1).

      . Although methadone legally obtained at a commission clinic may constitute evidence of possession of methadone with intent to distribute if the quantity is sufficient, the defendant herein could not be retried for the more serious offense which is based upon the same evidence as the present prosecution. State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State v. Dicker, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972).


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General, v. Kenneth E. PICKERING, the Louisiana Commissioner of Financial Institutions.
    No. 63510.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re Kenneth Pickering applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. 365 So.2d 943.

Writ denied.


text:
    STATE of Louisiana v. Ronald BONNET.
    No. 63699.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Ronald Bonnet, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson.

Writ granted. Trial Judge ordered to review police report in an in-camera inspection to determine whether it contained any evidence favorable to the defendant that is material and relevant to the issue of guilt or punishment. La.Code Crim.P. Art. 718.


text:
    STATE of Louisiana v. Albert Austin CROW. Albert A. CROW, PMB NO. 66580 v. Frank BLACKBURN, Warden.
    Nos. 63315, 63009.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In ^e Albert A. Crow applying for motion for rehearing. Parish of East Baton Rouge.

■ Motion not considered. See Rule 9, Sec. 6 of the Louisiana Supreme Court Rules.


text:
    STATE of Louisiana v. Stanley SULLIVAN, Jr.
    No. 63544.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Stanley Sullivan, Jr., applying for rehearing. Parish of East Baton Rouge.

Not considered.' Applications for rehearings are not considered as to writ denials. La.Sup.Ct. Rule 9, Sec. 6.


text:
    STATE of Louisiana v. Donald BELL.
    No. 63598.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Donald Bell applying for supervisory and remedial writs. Parish of Orleans.

Writ granted. The sentence is vacated, and the case is remanded for re-sentencing in compliance with La.C.Cr.P. art. 894.1.


text:
    STATE of Louisiana v. B. G. N. O., INCORPORATED, d/b/a Sinerama Theater.
    No. 63635.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Conhick, applying for writ of certiorari. Orleans Parish.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph F. Becker, III, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Patricia D. REYNOLDS.
    No. 63533.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Patricia D. Reynolds applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Gayle K. Hamilton, Judge of the First Judicial District Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Craig S. COCO.
    No. 63638.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Craig S. Coco, applying for writs of certiorari, prohibition and mandamus. Jefferson Parish.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Nestor Cur-rault, Jr., Judge of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be assigned by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. George O. ARMONEIT, III.
    No. 63732.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re George 0. Armoneit, III, applying for writs of certiorari, prohibition, mandamus and for a stay order. Jefferson Parish.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Floyd W. Newlin, Judge of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    In the Matter of the Interdiction of Mrs. Mary Josie Reno FABRE.
    No. 63057.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Mrs. Mary Josie Reno Fabre applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 361 So.2d 1315.

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.


text:
    In the Matter of the Interdiction of Mrs. Mary Josie Reno FABRE.
    No. 63317.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Mrs. Mary Josie Reno Fabre applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

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.


text:
    Orlando N. HAMILTON, Jr. v. Mrs. Evelyn J. McKEE, Administratrix of the Succession of Vera Childress Jackson.
    No. 63605.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Mrs. Evelyn J. McKee applying for writ of certiorari, Second Circuit Court of Appeal. Parish of East Carroll. 363 So.2d 1216.

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.


text:
    ALLSTATE INSURANCE COMPANY v. Cyrus THERIOT et al.
    No. 63466.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Melvin Moore applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson. 362 So.2d 1214.

Writ granted as to Moore; Writ denied as to Allstate.

SUMMERS, C. J., would deny.

TATE, CALOGERO and DENNIS, JJ., dissent as to the denial of Allstate’s writ.

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


text:
    Paul J. BOUDREAUX v. LOUISIANA BOARD OF REVIEW, Department of Employment Security, State of Louisiana, Administrator of the Department of Employment Security, State of Louisiana, and Vinson Guard Service.
    No. 63632.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Paul J. Boudreaux, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 363 So.2d 1258.

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.


text:
    Hubert J. BADEAUX v. DEPARTMENT OF POLICE.
    No. 63603.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Hubert J. Badeaux applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1238.

Writ denied.


text:
    Dr. Joseph D. DUVIGNEAUD v. GOVERNMENT EMPLOYEES INSURANCE CO. et al.
    No. 63628.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Government Employees Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 363 So.2d 1292.

Writ denied.

SUMMERS, C. J., and DIXON, J., would grant the writ.


text:
    Robert L. LANGEVIN et ux. v. James Kenneth HOWARD.
    No. 63626.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Robert L. Langevin et ux. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 363 So.2d 1209.

Writ denied.

DIXON, J., would grant the writ.


text:
    Eugene A. HARPER and Marlene O’Neal Smith v. Harold O’NEAL and Huey P. O’Neal.
    No. 63622.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Eugene A. Harper and Marlene O’Neal Smith applying for writ of certiora-ri, Second Circuit Court of Appeal. 363 So.2d 930.

Denied.

DIXON, CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    Dan ALBRITTON v. William R. McDONALD et al. d/b/a McDonald Quarter Horse Farm.
    No. 63607.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re William R. McDonald, et al. d/b/a McDonald Quarter Horse Farm, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Union. 363 So.2d 925.

Writ denied.

SUMMERS, C. J., would grant on the issue of attorney fees.


text:
    Catherine BENJAMIN and Fred Benjamin v. NATIONAL SUPERMARKETS, INC.
    No. 63636.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Catherine Benjamin and Fred Benjamin applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 138.

Writ denied.


text:
    W. E. DICKINSON and Loren Dickinson v. MARYLAND CASUALTY COMPANY.
    No. 63602.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Maryland/American General Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 364 So.2d 179. •

Writ denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana Through DEPARTMENT OF HIGHWAYS v. LUTCHER & MOORE, CYPRESS LUMBER COMPANY, LTD.
    No. 63633.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana through Dept, of Highways applying for writ of certiorari, Fourth Circuit Court of Appeal. 364 So:2d 134.

Writ denied.


text:
    STATE of Louisiana Through DEPARTMENT OF HIGHWAYS v. LUTCHER & MOORE CYPRESS LUMBER COMPANY, LTD.
    No. 63637.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Lutcher & Moore Cypress Lumber Co. Ltd. applying for writ of certiorari, Fourth Circuit Court of Appeal. 364 So.2d 134.

Writ denied.

SUMMERS, C. J., and TATE, J. would grant the writ.


text:
    Lasson B. LeGROS v. DEPARTMENT OF PUBLIC SAFETY, Division of State Police.
    No. 63585.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Lasson B. LeGros applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. Civil Service Commission. 364 So.2d 162.

Writ denied.


text:
    Clarence L. MURPHY v. HURDLE PLANTING & LIVESTOCK CO., INC. and Lamar Golman.
    No. 63631.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Hurdle Planting & Livestock Comr pany, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge. 364 So.2d 167.

Denied.

BLANCHE, J., would grant the writ.


text:
    Rene MARTIN v. Ambroise H. LANDRY, Recorder of Mortgages and Clerk of Court. Alonzo KLING v. Ambroise H. LANDRY, Recorder of Mortgages and Clerk of Court.
    No. 63642.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Nathaniel B. Rosenberg, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 364 So.2d 178.

Writ denied.

BLANCHE, J., recused.


text:
    Thomas U. PERKINS v. The STATE BOARD OF EDUCATION.
    No. 63625.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Thomas U. Perkins applying for writ of certiorari, First Circuit Court of Appeal. Parish of Tangipahoa. 364 So.2d 183.

Writ denied.

BLANCHE, J., recused.


text:
    C. M. MASLAND & SONS v. CHARLES CARTER & CO., INC.
    No. 63619.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Charles Carter & Co., Inc. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 364 So.2d 197.

Writ denied.

BLANCHE, J., recused.


text:
    Debra WILSON v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 63592.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana, through the Department of Highways, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 364 So.2d 1313.

Denied.


text:
    Roy WOODRUFF v. DEPARTMENT OF FIRE.
    No. 63569.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Roy Woodruff applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 364 So.2d 1341.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Boyce J. TRAHAN and Radio Station KVOL, Inc. v. Roger P. LARIVEE et al.
    No. 63599.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Boyce J. Trahan and Radio Station KVOL, Inc., applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Lafayette. 365 So.2d 294.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Melvin L. BROWN.
    No. 63573.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Melvin L. Brown applying for writs of certiorari and mandamus. Parish of St. Charles. 340 So.2d 1306.

Denied.


text:
    Adam DeVILLE v. The TOWN OF BUNKIE et al.
    No. 63595.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Adam DeVille applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Avoyelles. 364 So.2d 1378.

Writ denied.


text:
    STATE of Louisiana ex rel. James HUNTER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63374.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re James Hunter applying for writ of habeas corpus. Parish of Orleans.

Writ denied in part, granted in part; evi-dentiary hearing ordered.

The trial court initially at sentencing correctly determined that the accused was a triple offender, based on (1) the present conviction, (2) the two 1971 Louisiana convictions and (3) the 1967 Mississippi conviction. The contention raised in the trial court was that this determination was incorrect and that the trial court had improperly twice counted the two 1971 Louisiana convictions, contrary to State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973). It did not do so. See proceeding of June 2, 1975, quoted in application.

Although in denying the present application the trial court gave a different (and perhaps incorrect) explanation, there is no merit to the applicant’s contention. In connection with the other contentions concerning one of two prior convictions, an eviden-tiary hearing is ordered.

SUMMERS, C. J., would deny the application in full.


text:
    STATE of Louisiana v. Lawrence ROBINSON.
    No. 63686.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Lawrence Robinson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Caddo Parish.

Writ granted. Trial judge ordered to admit defendant to bail, the amount to be fixed after a hearing.


text:
    STATE of Louisiana v. Charles L. MITCHELL.
    No. 63769.
    Supreme Court of Louisiana.
    Jan. 15, 1979.
   In re Charles L. Mitchell applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans.

Writ denied.


text:
    Max MOORE & Julian Holliday, d/b/a Moore & Holliday v. Kenneth C. SCULLIN, Daniel R. Scullin and Folsom Investment Co., Inc.
    No. 63663.
    Supreme Court of Louisiana.
    Jan. 18, 1979.
   In re Kenneth C. Scullin, et al., applying for writ of certiorari, First Circuit Court of Appeal, No. 12,224. Parish of St. Tammany.

Writ denied.


text:
    STATE of Louisiana v. Nelson J. LIRETTE.
    No. 63791.
    Supreme Court of Louisiana.
    Jan. 18, 1979.
   In re Nelson J. Lirette, applying for writs of certiorari, prohibition, mandamus and for a stay order. Jefferson Parish.

Writ denied.


text:
    STATE of Louisiana v. Carla Louise LEE.
    No. 63684.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Carla Louise Lee, applying for writs of certiorari, prohibition, mandamus and for a stay order. Caddo Parish.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Gayle K. Hamilton, Judge of the First Judicial District Court, for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of February, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be assigned by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    Succession of Lawrence RUSSELL.
    No. 63698.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Henry Roussel applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. James.

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.


text:
    Kris KRAJEWSKI and numerous others unknown v. COVINGTON COUNTRY CLUB, INC. and ABC Insurance Company, et al.
    No. 63677.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Kris Krajewski applying for writ of certiorari, First Circuit Court of Appeal. Parish of St. Tammany.

Denied. The result is correct. See C.C.P. 1463 and discovery articles relating to depositions and subpoena duces tecum.


text:
    STATE of Louisiana v. Samuel QUINLEN. STATE of Louisiana v. Robert WILLIAMS. STATE of Louisiana v. Paul DECOSTE. STATE of Louisiana v. Renold CHURCH.
    No. 63693.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Samuel Quinlen, Robert Williams, Paul Decoste and Renold Church applying for writs of review. Parish of St. Mary.

Writ granted. Trial Court is ordered to recognize out of state counsel to represent defendants as is authorized by La.R.S. 37:214, even without order of this Court.


text:
    STATE of Louisiana v. Jack DANIEL and Denise Daniel.
    No. 63672.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Jack Daniel and Denise Daniel applying for writ of review. Parish of Terre-bonne.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Wilmore J. Broussard, Jr., Judge of the Thirty-Second Judicial District, Court for the Parish of Terrebonne, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of February, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relators herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be determined by this Court, why the relief prayed for in the petition of the relators should not be granted.


text:
    Robert N. WIEGAND, etc. v. GRAND CAILLOU PACKING CO., INC., et al.
    No. 63655.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In're Robert N. Wiegand applying for supervisory and remedial writs. Parish of Terrebonne.

Writ denied.

SUMMERS, C. J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Thomas BILLISON, Jr.
    No. 63692.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re State of Louisiana applying for writ of review. Parish of Jefferson.

Not considered, not timely.

MARCUS and DIXON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Michael FONTENOT.
    No. 63738.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Michael Fontenot applying for writs of certiorari, prohibition and mandamus. Parish of Livingston.

Writ granted. Bond reduced to $40,000.

SUMMERS, C. J., and BLANCHE, J., dissent.


text:
    STATE of Louisiana ex rel. Robert MYLES v. Hon. Frank MARULLO.
    No. 63426.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Robert Myles applying for supervisory writ. Parish of Orleans.

Writ granted. Re-sentencing set aside, and trial court ordered to permit the defendant to undergo the evaluation program for entry into Odyssey House, as proposed by the enclosure to its letter of August 2nd, in accordance with the plea bargain.

SUMMERS, C. J., dissents from the order and grant of this writ.


text:
    STATE of Louisiana ex rel. James Michael DUPRE v. LIVINGSTON PARISH CLERK OF COURT.
    No. 62804.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re James Michael Dupre applying for writ of mandamus. Parish of Livingston.

Writ granted in part, writ denied in part. Transferred to trial court to rule upon request that relator be furnished the name of his appellate counsel, if any; Otherwise denied.


text:
    Charles H. DAVISON, Jr. v. ROYAL-GLOBE INSURANCE COMPANY et al.
    No. 63652.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Charles H. Davison, Jr., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Thomas COMMEDORE.
    No. 63666.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Thomas Commedore applying for remedial writs. Parish of Orleans.

Denied. The matter is moot.


text:
    STATE of Louisiana v. David L. HUFFMAN.
    No. 63675.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re David L. Huffman applying for writs of certiorari, prohibition or mandamus. Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana v. Emile IZQUIERDO.
    No. 63800.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Emile Izquierdo, applying for writs of certiorari, prohibition, mandamus and a stay order. Jefferson Parish.

Denied.


text:
    STATE of Louisiana v. Ernest E. HAWKINS and Michael D. Warren.
    No. 63749.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Ernest E. Hawkins and Michael D. Warren, applying for remedial writ and stay order. Jefferson Parish.

Writ denied.


text:
    STATE of Louisiana v. Deloris B. TURNER, a/k/a Delores Whittington.
    No. 63690.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Deloris B. Turner applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu.

Writ denied.


text:
    TEXAS OPTICAL COMPANY, INC. v. Paul J. HARDY et al.
    No. 63682.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Texas Optical Co., Inc. applying for writ of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Writ denied.

BLANCHE, J., recused.


text:
    Sidney COSEY, Jr. v. Lillian Jonpierre Tyler COSEY.
    No. 63644.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Sidney Cosey, Jr. applying for writ of certiorari, First Circuit Court of Appeal. Parish of Tangipahoa. 364 So.2d 186.

Writ granted.

BLANCHE, J., recused.

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


text:
    SOUTHERN SHIPBUILDING CORPORATION and Continental Insurance Company v. Jeri Lynn RICHARDSON, Individually and in Her Capacity as Natural Tutrix for her minor children, Shane Marie Richardson and Brandi Lynn Richardson, Milton Brener, John Robbert, and Garon, Brener & McNeely.
    No. 63662.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Jeri Lynn Richardson, etc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 363 So.2d 1329.

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.


text:
    Sidney L. BARDFIELD v. NEW ORLEANS PUBLIC BELT RAILROAD et al. Joseph P. BURNS v. NEW ORLEANS PUBLIC BELT RAILROAD et al.
    No. 63650.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Sidney L. Bardfield and Joseph P. Burns applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1297.

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.


text:
    Floy Taylor BATEN v. Ruby Mae Baten TAYLOR.
    No. 63660.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Floy Taylor Baten applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Lafayette. 364 So.2d 226.

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.


text:
    Leopoldo C. MARQUEZ, Individually and as father & guardian of and for the Use and Benefit of his minor child, James A. Miguez v. CITY STORES CO. (owners of Maison Blanche Stores), Travelers Insurance Co., Otis Elevator Co., Commercial Union Insurance Companies.
    No. 63659.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Leopoldo C. Marquez, etc., applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1287.

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.


text:
    Mrs. Jenny M. CARNEY v. AMERICAN FIRE AND INDEMNITY COMPANY.
    No. 63678.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Mrs. Jenny M. Carney, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Rapides. 364 So.2d 1386.

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.


text:
    Joseph Lee LAVERGNE v. The WESTERN COMPANY OF NORTH AMERICA, INC., et al.
    No. 63646.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Joseph Lee Lavergne applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1243.

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.


text:
    FLEUR DE LEIS APARTMENTS v. DAVIDSON SASH & DOOR COMPANY, INC. and Masonite Corporation.
    No. 63694.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Masonite Corporation applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Calcasieu. 364 So.2d 234.

Writ denied.

SUMMERS, C. J., and BLANCHE, J., would grant the writ.


text:
    Pearl Smiddy COBBS et vir. v. CITY OF SHREVEPORT.
    No. 63688.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Pearl Smiddy Cobbs, et vir. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 365 So.2d 1.

Writ denied.

DIXON, J., would grant on the comparative negligence issue.


text:
    Levere C. MONTGOMERY, Jr. v. Glenn SNYDER et al.
    No. 63679.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Glenn Snyder, applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. So.2d 1286. Parish of Orleans. 363

Denied.

DIXON and grant the writ. CALOGERO, JJ., would


text:
    Cynthia NORMAND, Individually and on behalf of her minor son, Mark Normand v. CITY OF NEW ORLEANS, Audubon Zoological Society & Travelers Insurance Company. Cynthia NORMAND, Individually and on behalf of her minor son, Mark Normand v. John A. MOORE, Frank Ercole, Sylvester Mills, Dick Zitzmann, Walter Warren, Faye Steele and Travelers Insurance Company.
    No. 63648.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Cynthia Normand applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1220.

Writ denied.

DIXON, J., would grant the writ.


text:
    Donald R. MILTON v. Mary McGowan MILTON.
    No. 63649.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Donald R. Milton applying for writ of certiorari, First Circuit Court of Appeal. Parish of Livingston. 364 So.2d 173.

Writ denied.

TATE, DIXON and DENNIS, JJ., would grant the writ.


text:
    RED STICK CONFECTIONARIES, INC. v. COMMERCIAL UNION INSURANCE COMPANY.
    No. 63656.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Commercial Union Ins. Company applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 365 So.2d 580.

Writ denied.

SUMMERS, C. J., would grant on the issue of attorney fees.


text:
    WINSTON NETWORK, INC. v. TAC AMUSEMENT COMPANY.
    No. 63657.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Winston Network, Inc. applying for writ of certiorari, Fourth Circuit Court of Appeal, No. 9379. Parish of Orleans. 363 So.2d 1283.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Geraldine Clark DESSELLE et al. v. TIDEWATER MARINE SERVICE, INC., et al.
    No. 63658.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Tidewater Marine Service, Inc. applying for writ of certiorari, Fourth Circuit Court of Appeal, Parish of Jefferson. 363 So.2d 1199.

Writ denied.

SUMMERS, C. J., and DENNIS and BLANCHE, JJ., would grant the writ.


text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 63611.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   . In re David Pierson applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides. 365 So.2d 507.

Writ denied.


text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 63604.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Anne Pierson Patton applying for writ of certiorari, Third Circuit Court of Appeal, Parish of Rapides. 365 So.2d 507.

Writ denied.


text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 63584.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Diane Pierson Whaley, applying for writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 365 So.2d 507.

Writ denied.


text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 63563.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Louise Pierson Marshall, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Rap-ides. 365 So.2d 507.

Writ denied.


text:
    Jefferson V. HAYNES and Stephanie W. Haynes v. Martha Jane D. ADAMS.
    No. 63789.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Martha Jane D. Adams applying for writ of certiorari, Fourth Circuit Court of Appeal, Parish of Orleans. 364 So.2d 1082.

Writ denied on merits.


text:
    Dave Haas EWELL, Jr., et al. v. PETRO-PROCESSORS OF LOUISIANA, INC., et al.
    No. 63651.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Dave Haas Ewell, Jr., et al., applying for writ of certiorari, First Circuit Court of Appeal, Parish of East Baton Rouge. 364 So.2d 604.

Denied.


text:
    Lee GUILLOT and Doris Guillot v. STATE of Louisiana, Through the LOUISIANA STATE POLICE and the Louisiana Dept. of Public Safety.
    No. 63689.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Lee Guillot and Doris Guillot applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Avoyelles. 364 So.2d 254.

Writ denied.


text:
    Magali JOHNSON et al. v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY.
    No. 63664.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Magali Johnson, et al., applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. John the Baptist. 363 So.2d 1251.

Writ denied.


text:
    Robert Daniel CHAPPUIS v. SEARS, ROEBUCK & COMPANY et al.
    No. 63673.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Robert Daniel Chappuis applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 349 So.2d 963.

Writ denied.


text:
    Robert Daniel CHAPPUIS v. SEARS, ROEBUCK & CO. et al.
    No. 63661.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Vaughan & Bushnell Mfg. Co., Sears, Roebuck & Co. and Continental Insurance Co. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 349 So.2d 963.

Writ denied.


author: PER CURIAM.

text:
    Harold E. DWYER, Jr. v. Warren K. STATLER and Farm Bureau Mutual Insurance Co.
    No. 9970.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1978.
    Charles A. Verderame, Thomas L. Giraud, New Orleans, for plaintiff-appellee.
    Harry D. Hoskins, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL and BEER, JJ.
   ON THE MOTION TO DISMISS SUSPENSIVE APPEAL

PER CURIAM.

Harold E. Dwyer, Jr., plaintiff-appellee has filed a motion to dismiss the suspensive appeal of Warren K. Statler and Farm Bureau Mutual Insurance Company on the basis that they have not complied with Article 21.24 of the Louisiana Code of Civil Procedure; specifically, the appellee complains that the judgment appealed is a money judgment of Sixty Thousand Dollars plus interest and costs, calling for a suspensive appeal bond of one and one-half times the judgment amount, including interest, and that the appellants have filed only a $5,000 appeal bond. Appellee contends that we have no jurisdiction to entertain a suspen-sive appeal as a result.

On the showing made to us, the judgment is indeed a money judgment as described by appellee. Accordingly the rule for furnishing security is set out in Article 2124(1) requiring security in the amount of $114,-280.63. The trial judge did not fix security under sub-section (1), but apparently concluded that the appeal is governed by the provisions of sub-section (2), when the judgment distributes a fund in custodia legis. That result came about because the defendants had tendered into the registry of court the sum of $76,187.09, purporting to be an amount sufficient to satisfy the money judgment with interest from date of judicial demand to several days past the tender, together with costs and expert fees claimed. The appellee apparently refused the tender and the money is still deposited in the registry of the court. Thereafter the defendants appealed suspensively, furnishing the trial judge with an order to set bond for costs only because the money to satisfy the judgment was in custodia legis. The judge fixed security in the amount of $5,000, and appellants furnished a bond for that amount.

C.C.P. Article 2124 is definite in the rules for furnishing security for suspen-sive appeal, providing for three instances: 1.) when the judgment is for a sum of money; 2.) when the judgment distributes the fund in custodia legis; and 3.) in all other cases. The appellant is not able to change the nature of the judgment by depositing sufficient funds to satisfy the money judgment. At the same time, it must be recognized that the Article does not require a bond in all cases, but simply “security” which may be something other than a bond. In this case the appellant has apparently furnished a check on Farm Bureau Mutual Insurance Company payable to the Clerk of Court in the sum of $76,187.09 plus a corporate surety bond in the sum of $5,000, which is short of the amount mandated by Article 2124(1), and that all of it is not under the requisite obligation condition.

We feel compelled to make mention of these facts, not because we wish to usurp the function of the trial court under C.C.P. Article 2088(5), but because they are necessary to a determination as to whether this is a matter of jurisdiction of this court or simply an objection to the form, substance and sufficiency of the bond under Article 2088. From the facts presented, we conclude that this is not a jurisdictional matter of this court, but should be handled by the trial court under Article 2088(5). We note that the appellant did 'furnish the bond required by the trial judge’s order, and that the effect of the tender plus the cost bond is to provide security which, although insufficient, would substantially form a basis for satisfaction of the judgment. Appeals are favored in the law and we perceive no reason why the insufficiency cannot be corrected by the trial court pending this appeal.

The appellee’s motion to dismiss the sus-pensive appeal is refused and appellee is referred to the trial court for further proceedings in connection with the security to be furnished. Costs of these proceedings to be assessed at the conclusion of the matter.

MOTION REFUSED.


author: DOMENGEAUX, Judge.

text:
    Alton TASSIN et al., Plaintiffs-Appellees, v. C. A. RHYNES et al., Defendants-Appellants.
    No. 6607.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 1978.

      Ben C. Bennett, Jr., Marksville, for defendants-appellants.
    John R. Contois, Marksville, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

On October 14, 1977, on motion of the plaintiffs-appellees, we issued an opinion dismissing the appeal of the defendant-appellant, Malcolm Sayes, on the grounds that the appeal was not timely lodged due to the failure of the appellant to timely post the cost of his appeal as required by LSA-C.C.P. Art. 2126. Tassin et al. v. Rhynes et al., 353 So.2d 288.

In our original opinion, we indicated that the clerk of the trial court presented a request to the district judge for an extension of the August 23rd return date on August 23rd for the reason that the appellant had not yet paid the costs as required by C.C.P. Art. 2126.

On December 14, 1977, on rehearing, we recalled our order dismissing the appeal and remanded the case to the trial court for the purpose of having that court conduct a hearing; we felt that our conclusion may not have been fully supported by the record. Tassin et al. v. Rhynes et al., 353 So.2d 288. The record did not indicate the date the extension was presented to the trial court, or the date it was denied, facts which we felt crucial in view of the recent holding of our Supreme Court in Davidge v. Magliola, 346 So.2d 177 (La.1977).

We remanded the case for a determination of the following issues: (1) On what date was the request for an extension presented to the trial court, and (2) on what date was the extension denied and for what reason.

A hearing was held in the trial court on January 27,1978 pursuant to our order. At the hearing, it was determined that on August 23, 1977, the clerk of the trial court submitted to the trial judge an application for extension of the return date, stating as the reason: “Testimony of evidence.” The trial judge refused to sign the application because the reason given was not factually correct; he advised the clerk of court to submit factually correct reasons, i. e., that the costs had not been paid. This advice was given to the clerk of court on August 23, 1977. The clerk of court then re-submitted the application for an extension of the return day on August 26, 1977, stating as the reason that the cost of appeal had not been paid. The trial judge refused to grant the extension because the return date had passed, and the district court no longer had jurisdiction to grant or deny the extension.

In Davidge v. Magliola, supra, our Supreme Court reiterated the principle that the law favors appeals, and that they are to be maintained unless a legal ground for dismissal is clearly shown. In line with this policy, the court held that the failure of an appellant to timely advance costs within the delay designated by LSA-C.C.P. Art. 2126 and LSA-R.S. 13:4445 does not relieve the clerk of the trial court of his obligation to seek an extension of the return date from the trial court. We would add that this obligation implies a duty of the clerk of the trial court to seek an extension for factually correct reasons.

The correct reasons for the extension in this case were not presented to the trial court until two days after the return date; hence that omission of the clerk is not imputable to the appellant. Under these circumstances the appeal cannot be dismissed. LSA-C.C.P. Art. 2161.

For the reasons assigned, plaintiffs-appel-lees’ original motion to dismiss is denied.

MOTION DENIED.

      . The plaintiffs-appellees are Alton Tassin and Ray Normand.

      . The original opinion erroneously listed C. A. Rhynes as the defendant-appellant; C. A. Rhynes was dismissed as a party to the suit on April 15, 1977 on an exception of prescription.