author: PRICE, Judge. BOLIN, Judge.

text:
    In re Bronn Keynen SALMON and Shells Reschel Salmon.
    No. 12603.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1975.
    On Rehearing Sept. 3, 1975.

      Taylor, Porter, Brooks & Phillips, by W. S. McKenzie and G. Michael Pharis, Baton Rouge, for appellant.
    Bodenheimer, Jones, Klotz & Simmons, by C. Gary Mitchell, Shreveport, for appel-lee.
    Before AYRES, PRICE and HALL, JJ.
   PRICE, Judge.

This is an appeal from a judgment permitting the adoption of children under 17 years of age by a step-parent and rejecting the opposition of the natural father whose consent was found unnecessary because of his failure to comply with an order to pay support for a period in excess of one year.

Michael Paul Harrington and Dwanna Salmon Harrington filed this action seeking to adopt each other’s children by former marriages. Mrs. Harrington was allowed to adopt the Harrington children without opposition, Mr. Harrington’s former wife being deceased, and that part of the case is not before this court.

In response to Harrington’s petition in which he seeks to adopt Bronn Keynen Salmon, age 9, and Shelis Reschel Salmon, age S, the children’s father, Barry Kit Salmon, filed an opposition, reconventional demand, and third party demand. All but the opposition were subsequently dismissed by consent of the parties.

Petitioner, Michael Paul Harrington, contends the consent of the natural father of the children is unnecessary as he has forfeited his rights under the provisions of Louisiana Revised Statute 9:422.1, which reads as follows:

“422.1 Adoptions by step-parent, grandparent; consent
“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”

The record shows that Barry Salmon and Dwanna Salmon were married in Marshall, Texas, on January 8, 1966, and of this marriage the two children sought to be adopted by petitioner were born. This marriage ended in divorce on July 13, 1971, while the Salmons were living in St. Louis County, Missouri. In the Salmons judgment of divorce rendered in St. Louis County, Missouri, Mrs. Salmon was granted custody of the two minor children of the marriage and Salmon agreed to assume the debts of the marriage and to pay $15.00 a week for each of the two children of the marriage as child support.

In September of 1971 Salmon remarried. The record reflects during this period he was current, although not prompt with his child support payments. Beginning in November of 1971 Salmon and his second wife kept the children in their home in St. Louis for a period extending to July of 1972. This was at the request of Mrs. Salmon who wanted sufficient time to establish herself in another location. At the end of July, 1972, Mrs. Salmon again took custody of the children and moved to Shreveport to live. Salmon resumed paying child support payments, which were current until the end of November of 1972. He concedes that he has not paid child support payments since November, 1972, through the filing of the instant suit in May, 1974.

Defendant, Salmon, contends the requirement for his parental consent to this adoption has not been forfeited by the operation of R.S. 9:422.1(2) for these reasons :

(1). The Missouri judgment ordering him to pay support was not an enforceable decree in the State of Louisiana without having first been recognized and made executory. Therefore, as he was a resident of Louisiana during a portion of the time his failure to pay support is alleged, there was no failure to comply with a court order as intended by the statute.
(2). The failure to pay child support was not without justification and did not constitute neglect of his parental responsibility.

We find no merit in the first defense asserted by defendant. The language of the statute is clear and unambiguous and we cannot read into the statute the requirement that “a court order for support” must be a judgment which is subject to immediate enforcement by the courts of this state.

Defendant’s contention that his failure to pay support was not without justification is a serious question which has caused us much concern. This defense is grounded on the judicial interpretation of R.S. 9:422.1 by the Supreme Court in In Re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963), that the legislature never intended to forfeit the parental rights of a parent whose noncompliance with a court order to pay support was for reasons beyond his control and therefore justified.

In support of his position that his failure to pay any support from November, 1972, through the filing of this action in May, 1974, was not without justification, defendant offered evidence tending to show financial inability due to excessive indebtedness and employment difficulties amplified by domestic problems resulting in the failure of his second marriage. Defendant also attempts to show he was justified in not making any payment after Harrington’s marriage to Dwanna Salmon because of the attitude exhibited toward him by Harrington which lead him to believe his payment of support was not wanted, nor would it be accepted.

The evidence shows that at the time defendant was divorced from Dwanna Salmon he was employed in St. Louis by an optical firm and earned $763 per month. He remarried in September, 1971, and separated from his second wife in December, 1972. He lost his employment in June, 1973, and in August, 1973, he filed a petition in bankruptcy. He was unemployed from July until October, 1973, during which time he drew unemployment benefits of $48 per week. In October, 1973, defendant moved back to his former home in Shreveport where he was employed at a business belonging to his father. For a brief period of time around the first of the year in 1974 defendant was unemployed because his father’s business burned down. Thereafter he was employed by a firm which transferred him to New Orleans and almost immediately transferred him back to a branch in Shreveport where he has continued to be employed through the date of trial of these proceedings.

Defendant testified that he contacted Dwanna Salmon on several occasions after becoming unable to pay support in November of 1972, and explained his circumstances to her. He contends she stated she understood and that she was getting along all right on her earnings of approximately $150 per week as a beauty shop operator. Dwanna Harrington acknowledged contacts were made by defendant who made promises to catch up on his support payments which were never fulfilled.

Defendant testified that upon his return to Shreveport in October, 1973, he learned of his former wife’s plans to remarry. He contends he was thwarted in his efforts to visit regularly with his children and in making arrangements to resume payment of support by the actions of her new husband, Harrington. Defendant testified his wife informed him he would have to discuss such matters with her husband and that Harrington advised him he could only visit at Harrington’s convenience, which turned out to be very seldom. Defendant further testified that when the subject of support was discussed Harrington declared they did not need or desire his money and if checks were sent they would be torn up.

Harrington admits making some similar comments as contended by defendant, except that he denies saying the checks would be torn up. We observe that at the time of these conversations defendant was about 11 or 12 months in arrearage on support payments.

On the basis of this evidence the Juvenile Court judge granted the petition for adoption giving reasons for rejecting defendant’s opposition as follows:

“After the separation and divorce of the now Mrs. Harrington, the natural mother of the children and Mr. Barry Kit Salmon, some interest was shown by Mr. Salmon in his children and at a time he actually took them into his home. And the Court can reasonably conclude that he was dutiful toward his children for a while, however, from the record it is apparent that when times got rough for various reasons, including matrimonial difficulty with his then wife he then discontinued any interest in his children and devoted his full energies to himself and none to his children. This continued on until after the marriage of the petitioner and the natural mother of the children and after this marriage Mr. Salmon and Mr. Harrington did have a conversation and according to the testimony of Mr. Harrington he said that he intended to catch up on his child support payments, to which Mr. Harrington testified that he made the statement that ‘we did not need his money’, and he further testified that he possibly told him that they did not want it, but he was not sure of this last statement. No where in the record is there any evidence that Mr. Salmon came forward with any proposed plan to Mr. Harrington or to his former wife for the care of his children or to make any real substantial or concrete payments for their maintenance and support. Therefore, the Court is of the opinion that the neglect by Mr. Salmon was not due to any coercion by the mother of the children or by Mr. Harrington and that he was not thwarted in his efforts to support his children by the natural mother or by Mr. Harrington, the petitioner, and that it was due solely to his own neglect and the devoting of his energies and interests to himself rather than his children.”

Although we are aware of the extreme consequences resulting from the granting of an adoption which results in the severance of the legal rights of the children toward one of their natural parents, we must conclude that in accord with the provisions of R.S. 9:422.1 and the controlling jurisprudence, there is no manifest error in the judgment of the Juvenile Court appealed from.

As pointed out in In Re Ackenhausen, supra, p. 383, “Whether a legitimate parent has failed or refused to comply with an order of support so that consent is not required for adoption will, of course, have to depend on the facts of each case.”

Approximately one year and six months expired between defendant’s last payment of any sum and the filing of the petition for adoption. The tender of the balance of arrearages by bank money order after the filing of suit is, of course, ineffective and defendant’s counsel does not urge it as a bar to the proceedings. See In Re LaFitte, 247 La. 856, 174 So.2d 804 (1965). During this year and a half defendant was employed for all except three or four months. He also saw fit to contract a third marriage during November of 1973.

The finding of the trial judge that defendant was not thwarted or misled into withholding payments after the remarriage of his former wife is a close question since at the time these negotiations took place defendant was already approximately one year behind in payments and made no tender of payment of any amount during the ensuing period until suit was filed, we feel compelled to accept the trial judge’s finding in this regard.

The effect of defendant’s petition in bankruptcy and subsequent discharge in April, 1974, does not appear to have prevented defendant from making some bona fide effort to have attempted a compliance with his obligation of support after November of 1972. We must observe that the evidence does show defendant’s ability to pay did change during the summer of 1973, and had he made a reasonable effort to provide his children with a proportionate amount of his lessened ability, then his position would have been more favorable. Unfortunately, this did not occur and the total noncompliance must be construed against him.

The evidence showing he purchased a savings bond for $18.75 for each child monthly during the period between March, 1973, and September, 1973, cannot be construed as a compliance with his obligation of support of these bonds were retained by him and were cashed by him as an alternative payee in connection with his bankruptcy proceedings.

For the foregoing reasons the judgment appealed from is affirmed at appellant’s costs.

On Rehearing

Before BOLIN, HALL, PRICE, DENNIS and MARVIN, JJ.

BOLIN, Judge.

We granted a rehearing in this adoption case to give additional consideration to our original findings. Of particular interest, however, is our concern of whether this court has jurisdiction to hear the appeal because of the possible failure of appellant to timely file his appeal bond. This question was noticed by this court subsequent to our original decree and was called to the attention of counsel during oral arguments on rehearing. Counsel were invited to brief this question. Subsequently appellee filed in this court a motion to dismiss the appeal and counsel have filed briefs on this jurisdictional question.

MOTION TO DISMISS , . THE APPEAL

The record establishes the following chronology:

1.The case was tried on July 18, 1974, and submitted on written memoranda to be filed at a later date by counsel.

2. For oral reasons made part of the transcript the trial judge found the stepfather was entitled to adopt the children.

3. The final decree was signed and filed November 22, 1974. There is no record of a notice of judgment being mailed to the attorneys, as required by Louisiana Code of Civil Procedure Article 1913.

4. The attorney for appellant made a motion for a suspensive appeal on December 2, 1974, which was granted.

5. The appeal bond was filed on January 9, 1975.

The motion to dismiss the appeal involves consideration of two questions. First, is an appeal bond required in adoption cases? Second, if a bond is required, was it filed timely so as to perfect the appeal ?

On the first question appellant argues an appeal bond is not required in an adoption case and cites In Re State in Interest of Curley, 287 So.2d 558 (La.App. 1st Cir. 1973), wherein it was stated:

“The fact that the bond itself was filed approximately two months after the signing of the judgment is immaterial because no bond is required for the perfection of an appeal in a juvenile matter. The pertinent statutes relative to juvenile matters, L.R.S. 13:1571 et seq., contain no provisions for the necessity of furnishing bond as a requisite to the perfection of an appeal. A juvenile matter is neither civil nor criminal, but is sui generis.” (Emphasis ours)

Curley was an appeal from an adjudication that the children were neglected and, as a consequence, they were placed in the temporary care, custody apd control , of their maternal aunt and uncle. We do not find the holding in Curley to be controlling of the instant case for two reasons. First, Curley was not an adoption case. Second, the statement relative to appeals from juvenile courts not requiring an appeal bond is dicta since the appeal was dismissed because the motion for appeal was not timely filed.

However, In Re Diaz, 211 La. 1015, 31 So.2d 195 (1947), does state that certain juvenile proceedings are sui generis and not governed by the procedural requirements of either the Code of Criminal Procedure or the old Code of Practice. The court stated:

“ . . . It is argued, however, that, in view of the absence of a specific provision, the time limit exacted by either Article 542 of the Code of Criminal Procedure or Article 593 of the Code- of Practice should be employed.
“The argument is not tenable. The prescriptions set forth in the Code of Criminal Procedure and the Code of Practice pertain to appeals in criminal and civil cases respectively and cannot by inference or implication be extended to appeals from the Juvenile Court in cases concerning the general welfare of children. Such cases are not to be classed as civil or criminal — indeed, they are sui generis. Accordingly, appeals from, judgments of the Juvenile Court involving the status of a minor child may be taken at any time since there is no prescription provided for by statute.” (Emphasis added)

Other cases involving adoptions do not follow this line of decisions. In Interest of Jackson, 294 So.2d 517 (La.1974) involved a proceeding which declared that a child had been abandoned by his father. The court granted a devolutive appeal to the father, which appeal was erroneously made returnable to the Supreme Court. The order granting the appeal fixed the appeal bond, but the bond was never filed. After the error concerning the appeal was discovered, the juvenile court granted a second devolutive appeal to the court of appeal. The court of appeal dismissed the appeal on its own motion since it concluded the juvenile court did not have jurisdiction to grant the second appeal. The supreme court affirmed on the ground that the juvenile court was divested of jurisdiction when it granted the original order to appeal to the supreme court.

The court’s rationale was that one reason an appeal bond is required is to secure the payment of costs. According to Louisiana Revised Statutes 13:1585, no costs are assessable in abandonment proceedings and, therefore, no appeal bond is required. Since no appeal bond is required, the juvenile court was divested of jurisdiction on the granting of the order of appeal under the authority of Louisiana Code of Civil Procedure Article 2088. Jackson seems to narrow the holding of In Re Diaz, supra, because La.R.S. 13:1585(B) provides that the court may charge “fees for adoption cases which shall be payable in the same manner as fees in ordinary civil proceedings.” If the rationale of the supreme court in Jackson is followed, appeal bonds are necessary in adoption appeals.

In Adoption of Lindsey, 302 So.2d 925 (La.App. 1st Cir. 1974, writs refused), the court had an adoption proceeding before it for review. The final judgment was dated January 23, 1974. The appellant filed a motion to appeal on February 21, 1974. The order granting the appeal was signed on February 25, 1974. The appeal bond was filed on March 11, 1974. The court dismissed the appeal because it was not perfected timely. The court stated:

“As noted above, the statute provides that the appeal must be perfected within thirty days after a judgment is rendered. Adoption proceedings are not exempted from the general dispositions regulating appellate procedure, save the requirement that they be perfected in thirty days. See Ball v. Campbell, 222 La. 399, 62 So.2d 621 (1952), wherein the Court rejected the argument that appellate procedure in an adoption proceeding is different from the general rules governing appeal as then contained in the Code of Practice.”

Louisiana Revised Statutes 13:1591, as amended by Act 714 of 1972, concerns appeals from juvenile court judgments. The statute provides in part:

“ . . . An appeal shall lie on questions of law and of fact when the judgment of the court affects the custody, care or control of children under seventeen years of age, but such appeal shall be devolutive unless the court of appeal shall order otherwise. An appeal shall also lie on questions of law and of fact on both interlocutory and final judgments in adoption proceedings, proceedings to declare children abandoned. In all other cases an appeal shall lie on questions of law alone. Appeals from any final judgment of a juvenile court must be taken within fifteen days after said judgment is signed, except that in adoption proceedings appeals shall be taken as is provided by law.” (Emphasis supplied)

The emphasized portion of 13:1591 refers to Louisiana Revised Statutes 9:438, which provides:

“Appeals from any judgment rendered-in accordance with this Sub-part [adoptions] or from the granting or refusal of any interlocutory decree shall be to the supreme court on both law and fact. Any party to the proceedings or any other party in interest shall have the right to appeal within thirty days after the rendition of a judgment or decree. If no appeal is perfected within thirty days after a judgment is rendered, the judgment shall be final.”

Although the first sentence in the foregoing section is no longer in effect, following the constitutional revision of the appellate jurisdiction in 1960 and more recently the Louisiana Constitution of 1974, Article 5, § 10, the second sentence is in effect and the appeal must be perfected within thirty days “after the judgment is rendered.” See Adoption of Lemoine, 146 So.2d 12 (La.App. 3d Cir. 1962, writ denied 1963).

We also note that Louisiana Code of Civil Procedure Article 2081 states:

“The provisions of this Title are applicable to all appeals to the supreme court and the courts of appeal, except as otherwise provided by law.”

The pertinent parts of Louisiana Revised Statutes 9:438 and 13:1591 only concern the time within which to perfect an appeal from an adoption proceeding in a juvenile court. Based on the Jackson and Lindsey cases and Louisiana Code of Civil Procedure Article 2081, appeals in adoption cases are governed by the Code of Civil Procedure insofar as that code does not conflict with Louisiana Revised Statutes 9:438 or 13:1591. We therefore conclude the filing of an appeal bond is required in an adoption case.

The next question is whether the appeal bond was timely filed. Relevant to this question are the following articles of the Code of Civil Procedure:

Art. 1913.
“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
“Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
“If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
“The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed,
“Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.” (Emphasis supplied)
Art. 1974.
“The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
“When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.” [As amended by Act 520 of 1974]
Art. 2123.
“Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
* * * »

[As amended by Act 129 of 1974]

Since this case was taken under advisement and the final judgment subsequently rendered, Code of Civil Procedure Article 1913 required that notice of the signing of the final judgment be mailed by the clerk of court to the counsel of record for each party. The record does not reflect that this was done. The mailing of notice of judgment is crucial under our system of appellate procedure because that date determines when the delays for moving for a new trial and the appeal delays begin to run.

If notice of judgment is not furnished as required by law, the delays for seeking a new trial or an appeal do not ordinarily begin to run. (La.C.C.P. Art. 1974, quoted supra). In Rasberry v. English, 255 So.2d 433 (La.App. 3d Cir. 1971), the plaintiff moved to dismiss the defendant’s appeal. The court stated:

“In the present case, no application for a new trial was made by either party. Since the case was taken under advisement, and the judgment subsequently rendered, the law indicates that the delay of three days for applying for a new trial begins to run the day after the Clerk of Court mails notification of the rendition of judgment. Carrying this further, the delay allowed for the sus-pensive appeal would be fifteen days after the three-day period allowed for the applying for a new trial. The judgment was rendered as stated aboye, on March 2, 1971, and the appeal taken approximately 36 days later on April 8, 1971.
“The problem arises herein due to the fact that no certificate, specifying the date upon which the notice of judgment was mailed, can be found in the record. Without such an entry, it is impossible to determine whether or not the Clerk of Court complied with Article 1913 of the Code of Civil Procedure. It must be presumed that no notice was mailed as required, and therefore, the time allotted for making application for new trial, as well as for taking suspensive appeal, has not yet begun to run. Defendants’ suspensive appeal must therefore be considered as having been timely perfected. Soileau v. Tri-State Mutual Insurance Company, 206 So.2d 716 (La.App. 3rd Cir., 1968); Georgia-Pacific Corp. v. Jim Walter Corp., 178 So.2d 794 (La.App. 3rd Cir., 1965); Kinchen v. Kinchen, 256 La. 28, 235 So.2d 81 (1970); Robertson v. Norwood, 234 So.2d 509 (La.App. 4th Cir., 1970); Boudreaux v. Allstate Finance Corporation, 217 So.2d 439 (La.App. 1st Cir., 1968).
“For the foregoing reasons, the motion by the plaintiff-appellee to dismiss defendants-appellants’ suspensive appeal is denied.”

A jurisprudential rule has developed that if the required notice of judgment is not given by the clerk of court, the filing of a motion to appeal serves as a waiver of the notice of judgment. In Carlisle v. Carlisle, 313 So.2d 908 (La.App. 2d Cir. 1975), a case involving custody of children, the trial was completed on October 21, 1974 and the case taken under advisement. Final judgment was rendered on November 12, 1974, and on the same day plaintiff asked for and was granted an appeal. The required notice of judgment under C.C.P. article 1913 was not given. Fifty-six days following the day the final judgment was signed and the appeal was granted, plaintiff filed his appeal bond. The appeal was dismissed, the court stating:

“However, where the appellant’s attorney moves for and is granted an appeal prior to the service on him of the notice of judgment, the purpose of serving the notice has been fulfilled and the delay for perfection of his appeal should begin to accrue on this date. The reason for the requiremfent that the clerk mail notice of final judgment is to inform the litigants whose case has been taken under advisement of the date of the signing of the judgment so that they may timely move for a new trial or an appeal. Therefore, a motion made by a party for an appeal constitutes a waiver of the requirement that he be given notice of judgment. This result is in accord with the decisions in X-L Finance Company v. Hollinger, 185 So.2d 873 (La.App. 3d Cir. 1966); and McNeely v. American Live Stock Insurance Co., 269 So.2d 529 (La.App. 1st Cir. 1972). We conclude, therefore, that the delays for perfecting the appeal began the day plaintiff-appellant asked for and was granted a de-volutive appeal, and expired prior to the filing of the bond 56 days later.”

We have carefully examined the opinion in Carlisle, the cases cited therein and other cases relating to the same subject. The broad statement is made in many of these cases that, where notice of judgment is required but not given, the delay for perfecting an appeal begins tolling from the date an appeal is granted.

However, the instant case contains a problem not present in Carlisle or in any other case this court examined. The appellant’s bond would be timely filed if, but only if, the appeal delays included not only the thirty-day delay for perfecting an appeal provided for in La.R.S. 9:438, but also the additional seven days exclusive of holidays in which to move for a new trial. In all the cases examined by this court, it made no difference in the result that the delay to move for a new trial was not considered in the computation of the time in which to perfect an appeal. In all the cases the delays for applying for a new trial plus the delays for appealing had expired prior to the perfection of the appeal or the record was not clear whether the delay for a new trial was made an issue. We do find the clear holding in all of the cases to be that when an appellant asks for and receives an appeal from a final judgment, he thereby waives notice of judgment if such notice is required,

In the instant case if appellant only waived notice of judgment by taking his appeal on December 2, 1974, he had seven days exclusive of legal holidays (C.C.P. 1974, quoted supra) from December 3, 1974 to ask for a new trial, which delay would not have expired until December 12, 1974. Following this rationale, the thirty-day delay for perfecting his appeal would not have begun until December 13, 1974. (C.C.P. art. 2123, cited supra), and expired on Monday, January 13, 1975. (C.C.P. art. 5059). The appeal bond filed on January 9, 1975, would thus have been timely. We adopt this rationale and hold the appeal was timely perfected.

We reach this conclusion for two principal reasons. First, appeals are favored in the law and should not be dismissed unless the law clearly requires a dismissal. Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972); Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973).

Second, as pointed out herein, we are unable to find any law that clearly states the taking of an appeal waives the delays for applying for a new trial. To the contrary, in American National Insurance Company v. Ramon, 204 So.2d 798 (La.App. 4th Cir. 1967), a motion for a new trial was filed, tried and denied after orders of appeal were taken. While the question of whether the delays for perfecting this appeal began from the date of the order of appeal or the date the new trial was denied was not directly at issue, the implication is clear that the delays would begin from the date the motion for new trial was denied.

MERITS AND DECREE

After a painstaking review of the record we conclude there is ample evidence to support the judgment of adoption, and accordingly our original decree affirming the judgment of the lower court at appellant’s cost is reinstated.


source: Caselaw Access Project

author:
MORIAL, Judge.
      SCHOTT, Judge

license: Public Domain

text:
    Oliver P. SCHULINGKAMP v. VISTA SHORES CLUB.
    No. 6851.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.

      John C. Werhan, Metairie, for plaintiff-appellant.
    Charles E. Cabibi, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Defendant, a Louisiana non-profit corporation, in aid of financing the construction and equipping of a building for the use and enjoyment of its members devised a plan whereby a member would purchase a “25 Year Debenture Note.” Plaintiff, as a member purchased an instrument complete on its face which was delivered to him and read as follows:

“VISTA SHORES CLUB
New Orleans, Louisiana
25-Year Debenture Note

(8% per annum interest from maturity)

“VISTA SHORES CLUB, a Louisiana non-profit corporation, herein called the Corporation, for value received, hereby promises to pay Judge Oliver P. Schuling-kamp or order, the sum of $1,250 on or before April 15, 1985, with 8% per annum interest from maturity. The principal shall be payable at the office of the Corporation in New Orleans, Louisiana.

“This note is one of an issue known as 25-year debenture notes, duly authorized, in the aggregate principal amount of $375,000.00 and issued in denominations of $1,250, all of like date, tenor and maturity, exept the variations necessary to express the name of the payee and the number of each note.

“The Corporation reserves the right to pay all or any portion of the principal amount of this note at any time without making a similar payment or a pro rata payment upon any other note included in this issue of 25-year debenture notes.

“No recourse shall be had for payment of any part of the principal of this note against any incorporator, officer, director or any present or future member of this Corporation by virtue of any law, or by the enforcement of any assessment, or otherwise or against any officer or director of the Corporation by reason of any matter prior to the delivery of this note, or against any present or future officer or director of the Corporation, all such liability being, by the acceptance hereof and as a part of the consideration for the issue hereof, expressly released.

“In witness whereof the Corporation has signed and sealed this note on April 15, 1960.

VISTA SHORES CLUB

Attest:

/s/ Ted Drell_

Secretary

By /s/ John M, Key_

President "

Plaintiff resigned his membership on February 24, 1966. He demanded the return of the face value of the “debenture note.” Defendant refused and plaintiff filed this suit. The district court dismissed plaintiff’s suit. We affirm.

Plaintiff argues that the face value of the “debenture note” should be returned to him prior to maturity because (1) the membership in the defendant was increased from 500 to 600 and these additional members were admitted to membership in defendant without the requirement to purchase such a “debenture note” and thereby the negotiability of his “debenture note” was destroyed and his proportionate undivided ownership of the defendant was reduced; and (2) new members have benefited and been unjustly enriched at his expense. The arguments are without merit.

It is well settled that the term applied to an instrument does not necessarily determine its character. The instrument sued upon creates and acknowledges a debt; it is a simple acknowledgment or promise to pay like a promissory note. It confers no legal title or any ordinary right of ownership; except to the extent that plaintiff, as a member of the corporation, had a voice in the affairs of defendant, it grants him no legal right to interfere with the defendant’s control or use of its property. See: Carson, Pirie, Scott & Co. v. Duffy-Powers, Inc., 9 F.Supp. 199, 201 (D.C.1934); United Masonic Temple Corp. v. Harris, 242 Ill.App. 296 (1926); Lorimer v. McGreevy, 229 Mo.App. 970, 84 S.W.2d 667 (1935). The instrument is in the form required for it to be negotiable. LSA-R.S. 7:1. The lack of “marketability” does not adversely affect its character as a negotiable instrument. It was negotiable in its origin and continues to be so. LSA-R.S. 7:47. In no part of the preorganization documents is there anything to indicate that the instrument is of a character differently than we have described it, i. e., an unconditional promise to pay a debt in a fixed amount.

To the preorganization documents we look to ascertain the intent of the parties. While intent would not necessarily be controlling, the intent here seems clear and unambiguous. Our examination of the preorganization documents reveals no conflict with the denomination, date, tenor, maturity or rate of interest set forth in plaintiff’s “25-Year Debenture Note.” Though the preorganization data discloses that defendant hoped for a membership of 500, the “debenture” issued to plaintiff, clearly manifests it to be one of an aggregate issue of 300. Therefore, plaintiff, who voluntarily became a member of defendant and purchased the “debenture” has no cause now to complain of any increase in the membership.

New members of defendant or defendant have not been unjustly enriched by plaintiff’s loan of money to defendant which is evidenced by defendant’s obligation in the form of plaintiff’s “25 Year Debenture Note.” The provisions of LSA-R.C.C. Art. 1965 are inapplicable to the agreement clearly voiced by the parties in the terms of the “25 Year Debenture Note.”

Affirmed.

SCHOTT, Judge

(concurring in the result).

Plaintiff’s suit for a refund of his $1250 purchase price for a debenture note issued by defendant in connection with his becoming a member of defendant is based upon the following: When he joined the club he understood that there would be no more than 500 members in the club. When the club subsequently increased the number of members his percentage of ownership in the club was diluted. Furthermore, while defendant did not require new members to purchase bonds similar to the one plaintiff purchased, the new members got the same benefits as did plaintiff, enabling the new members unjustly to enrich themselves at the expense of plaintiff. Finally, the failure of the club to require that the new members at least purchase outstanding debentures from old members had the effect of destroying the marketability of plaintiff’s debenture.

Plaintiff’s position is without merit because of the very wording of the charter of the club whose debenture he voluntarily purchased in connection with his application for membership.

The charter, adopted on March 26, 1959, provided that “the total number of members shall be set forth in the by-laws of this corporation.” It contained no provision establishing as a condition of membership that a debenture must be purchased. On August 11, 1959, at a general meeting of defendant corporation it was agreed that membership would be limited to 500 families, a $1250 bond would be offered to the members and the first 300 members would not be required to pay an initiation fee while the remaining 200 members would be required to pay an initiation fee of $250. Against this backdrop plaintiff applied for membership, and on April 7, 1960, defendant addressed to plaintiff a letter advising him that his application for membership had been approved and informing him:

“As you know, the club has a limited membership of 500 and there is a monetary advantage of being one of the first 300 members. We want to thank you for volunteering to purchase a bond from the club. Please forward your check in the amount of $1260, made payable ,to ‘Vista Shores Club’ to cover the bond in the amount of $1250 and semi-annual dues in the amount of $10. .
“It would be a pleasure to count you among our members.”

In due course plaintiff put up his $1250 and the debenture note was issued to him on April 15.

Plaintiff in his testimony acknowledged that he was not compelled to purchase the debenture note except insofar as he desired to be a member and he understood that he could not become a member unless he purchased the note. But by voluntarily becoming a member he subjected himself to the consequences of the charter and then existing by-laws. Since nothing therein required defendant to exact from future members the purchase of debentures plaintiff assumed whatever risk was involved to the value or marketability of his debenture should future members not be required to purchase debentures.

Furthermore, he assumed the risk of legal changes in membership requirements which might come about within the framework of the charter. The first formal bylaws limited the number of members to 500, exempted the first 300 members from an initiation fee and set a membership fee for others at $250. But on July 1, 1963, the members legally changed the membership clause of the by-laws to raise the number from 500 to 600. Thus, plaintiff by being among the first 300 members was exempt from the payment of an initiation fee, while those who came afterward were required to pay this fee.

There was no such connexity between his application for membership and purchase of the bond which now entitles him to demand that his bond he prepaid because he has decided to resign his membership. Each of the documents, that is, the articles of incorporation and the by-laws of the club on the one hand, and the debenture note on the other hand, are separate and distinct contracts, and while he may have been motivated in part to purchase the debenture note by the provisions of the bylaws in existence at that time he was charged with the knowledge that there might be changes in the by-laws after he became a member.


author: BOUT ALL, Judge. LEMMON, Judge

text:
    LAKE, INC. v. LOUISIANA POWER & LIGHT CO.
    No. 6779.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Granted Nov. 25, 1975.
    Lamar M. Richardson, Jr., Ponder & Richardson, Metairie, for Lake, Inc., plaintiff-appellant.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, J. Wayne Anderson, New Orleans, for Louisiana Power & Light Company, defendant-appellee.
    Before SAMUEL, LEMMON and BOUTALL, JJ.
   BOUT ALL, Judge.

This case comes before us from the granting of a summary judgment in favor of defendant and the dismissal of plaintiff’s suit.

In 1925 a Mrs. Theriot purchased two lots in Westwego Heights Subdivision. In 1930 defendant constructed a large power line across these two lots without first invoking expropriation powers in the courts. In 1954 Mrs. Theriot complained to Louisiana Power & Light about the power lines, asking that she receive damages for the presence of the lines. Louisiana Power & Light did not respond and Mrs. Theriot did not pursue the matter any further. In 1961 Lake, Inc. bought the two lots at a tax sale. In 1972 Lake, Inc. instituted this suit for removal of the power lines or alternatively compensation for their presence.

The trial judge granted judgment for Louisiana Power & Light on the basis of the applicability of the St. Julien doctrine and we affirm.

The St. Julien doctrine, first announced in the case of St. Julien v. Morgan’s La. & Tex. Ry. Co., 35 L.Ann 924 (1883), states that a public or quasi-public corporation, with the power of expropriation, may acquire a servitude over the land of another without expropriation proceedings if the landowner had knowledge of the construction and consented to it or acquiesced in it. The doctrine allows the structures to remain on the property, but grants the landowner a right to damages for their presence.

The facts show that these power lines had been on Mrs. Theriot’s property for 24 years before she raised any complaint. This failure to complain constitutes acquiescence in the structures’ presence. St. Julien v. Morgan’s La. & Tex. Ry. Co., supra; Veillon v. Columbia Gulf Transmission Co., 192 So.2d 646 (La.App. 3rd Cir. 1966). Mrs. Theriot’s complaint in 1954 was ineffectual since the St. Julien case makes it very clear that the landowner must do more than merely complain. In St. Julien, at pages 925 and 926, the court stated:

“It is unnecessary for us to say or intimate how or whether he would have been protected had he done more than talk to a lawyer. Certain it is he did not invoke the arm of the law at the time when it could have been of service to him, but on the contrary acquiesced in the defendant’s taking possession and using his property, encouraged it to prosecute its work by abstaining from any attempt to prevent it, and made no complaint in a court of law of the injuries inflicted upon him until the defendant had expended large sums of money in completing its line. Having thus permitted the use and occupancy of his land and the construction of a quasi public work thereon without resistance or even complaint, he cannot afterwards require its demolition, nor pre*vent its use, nor treat the Company erecting it as his tenant.” (*926)

Since the St. Julien case in 1883 a long line of jurisprudence has upheld this equitable doctrine of unopposed use and occupancy. Mitchell v. N. O. & N. E. Ry. Co., 41 La.Ann. 363, 6 So. 522 (1889); Gumbel v. N. O. Terminal Co., 186 La. 882, 173 So. 518 (1937); Veillon v. Columbia Gulf Transmission Co., supra; Harrison v. Louisiana Power & Light Company, 274 So.2d 785 (La.App. 4th Cir. 1973) reversed on other grounds, 288 So.2d 37 (1973). We believe this doctrine, although a very old one, still has vitality and is still needed even in our complex and changing society. The theory behind this doctrine is that were we to force the removal of these power lines we would be harming the public unnecessarily. The people of that area have depended upon and used the power from these lines for 45 years. By failing to invoke the St. Julien doctrine we would cause an interruption in that area’s electrical service or relocation of the power lines at great expense to the consuming public. Justice warrants neither of these results.

The next issue before us is whether Lake, Inc. is entitled to damages for the presence of the power lines on their property. We are mindful of the fact that St. Julien and the cases that followed it have always allowed compensation to the landowner after judicially creating a servitude on his property. Our review of the jurisprudence discloses that this right to compensation is not absolute and may be lost. The facts in this case clearly show that Lake, Inc. has lost its right to compensation.

It is not disputed by the litigants that this right to compensation is a personal right and not a property right. As such the right does not attach to the land, but remains with the landowner when the property is sold. McCutchen v. Texas & P. Ry. Co., 118 La. 436, 43 So. 42 (1907); Gumbel v. N. O. Terminal Co., 197 La. 439, 1 So.2d 686 (1941); Veillon v. Columbia Gulf Transmission Co., supra. Mrs. Theriot first had this right and did not transfer it to Lake, Inc. at the tax sale or at any other time, therefore, Lake, Inc. cannot assert a right it does not have. Even assuming that Lake, Inc. still possessed this right it has lost it through prescription. RCC article 3544 states that personal rights prescribe in 10 years and Lake, Inc. owned the property for 11 years before commencing this action. See McCutchen v. Texas & P. Ry. Co., supra.

For the foregoing reasons the judgment of the lower court is affirmed. Appellant to pay all costs.

Affirmed.

LEMMON, J., concurs and will assign reasons.

LEMMON, Judge

(concurring).

Supreme Court decisions, which (although recently questioned) have not been overruled, support the majority opinion.

While acknowledging the authority of these decisions, I express my personal view that a predial servitude cannot be acquired by an indefinite period of acquiescence. The Civil Code, however, does provide specifically that continuous apparent servi-tudes may be acquired by possession for ten or thirty years. C.C. art. 765, 3504.

Continuity has often been confused with apparentness. C.C. art. 727 defines continuous servitudes as those whose use is or may be continual without the act of man. The Code classifies an aquaduct as continuous, although such a servitude is only used intermittently, because it may be used uninterruptedly without man’s intervention. On the other hand, the Code classifies the right of passage as a discontinuous servitude. C.C. art. 727. This classification has been held applicable even when the usage of that right is evidenced by a concrete driveway or by a railroad. Kelly v. Pippitone, 12 La.App. 635, 126 So. 79 (La.App.Orl.1930); Ogborn v. Lower Terrebonne Ref. & Mfg. Co., 129 La. 379, 56 So. 323 (1911); but perhaps contra, see Nash v. Whitten, 312 So.2d 679 (La.App. 2nd Cir. 1975). See also XII Tul.L.Rev. 227 (1938).

The redactors of the Civil Code distinguished between continuous and discontinuous servitudes for purposes of acquisitive prescription, apparently contemplating that discontinuous servitudes were related to isolated acts (such as the occasional passage over the servient estate or the drawing of water upon the estate) which were such a temporary and minor inconvenience that the owner would reasonably be deemed to tolerate the acts. Accordingly, the redactors did not consider the isolated acts done in exercise of discontinuous ser-vitudes as encroachments sufficient to provide a basis for acquisitive prescription. 1 Plainol, Traite Élémentaire de Droit Civil, § 2949 (La.St.L.Inst.Trans.1959); Bandry-Lacantinerie & Tissier, Traite Théorique et Pratique de Droit Civil, § 283 (La.St.L.Inst. Trans.1972).

Nevertheless, the redactors of the Code did provide that a person may acquire ownership of part of the immovable property comprising the servient estate by continuous public possession for thirty years. C.C. art. 3475, 3499. Since the acquisition of ownership is based on continuous possession, a difficulty arises because the word “continuous” apparently has a different meaning in C.C. art. 3500 relative to acquisite prescription than in C.C. art. 727 relative to classification of servitudes. Thus, a person theoretically can acquire the right of ownership of a part of the property forming a servient estate by exercising continuous, uninterrupted, public, unequivocal possession as owner (such as by building and operating a railroad or an electric transmission line), but can never by the same acts acquire the lesser right of servitude.

The better approach would be to classify a servitude as continuous when the right exercised upon the servient estate is evidenced by permanent and conspicuous structures, such as a concrete driveway, a railroad, or an electric transmission line. Although technically such structures may not be used uninterruptedly without the act of man, the structures give a characteristic of continuity to the use of the servitude, and since the presence of such structures would be sufficient encroachment to provide a basis for acquiring ownership by possession, their presence should be sufficient to provide a basis for acquiring a servitude by possession.

In the present case defendant s possession prevented the owner from freely using the possessed portion of the servient estate for over thirty years. This type of public and uninterrupted possession entitled defendant to claim ownership of that portion of the estate (which alone is sufficient basis to affirm the judgment in defendant’s favor). In my opinion defendant should be likewise entitled to claim a servitude over the same portion based on the same possession.

      . The “St. Julien doctrine” is not actually another method of acquiring servitudes, but was established to prohibit untimely suits for removal of public works known to the landowner. In effect the doctrine converts such a suit by the plaintiff (landowner) into an expropriation proceedings by the defendant (public or quasi-public body), allowing the landowner all rights except removal and trespass damages.


author: SCHOTT, Judge. STOULIG, Judge MORIAL, Judge

text:
    BOARD OF COMMISSIONERS FOR the LAFOURCHE BASIN LEVEE DISTRICT v. Dr. William J. ELMER et al.
    No. 6754.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.

      Felix H. Savoie, Jr., Napoleonville, and James O. Manning, Metairie, for plaintiff-appellant.
    Gordon K. Konrad, Gretna, for defendant-appellee.
    Before REDMANN, GULOTTA, STOULIG, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

Plaintiff has again appealed from an adverse judgment after trial on remand pursuant to' our judgment at 268 So.2d 274, writ refused, 263 La. 613, 268 So.2d 675. Our stated purpose for the remand was “of establishing more conclusively the value” of the property as -of October 27, 1949, when it was acquired by Dr. Elmer, defendant. We have not reconsidered the issues discussed in the previous opinion but confine ourselves to a consideration of the trial judge’s decision that the price paid for the property by defendant in 1949 was consistent with its value.

Since the purpose of considering such value was to determine whether defendant was in good faith when he acquired, and .since good faith is presumed, pursuant to LSA-C.C. Art. 3481 the burden of proof was on plaintiff to produce sufficient evidence of disparity between true value and the price paid so as to rebut the presumption in favor of defendant. Plaintiff carried this burden with evidence that within the first year after defendant bought the entire property for $3300, or about $2 per acre, they sold just 14 parcels of much less than an acre each for more than $22,000. At this point the burden shifted to defendant to disprove the now apparent disparity which was sufficient to rebut the presumption of good faith.

Defendant’s evidence fell short. In attempting to show comparable sales he relied on an abstracter who picked out from the public records transactions which he thought involved like property. Having located only a few such transactions in Jefferson Parish records, he explored the records of the State Land Office for such “comparables.” Defendant produced no expert, no real estate appraiser and no witness who saw this land but he relied exclusively on one who merely examined maps and acts of sale but who had no first hand knowledge of the quality or type of land actually purchased by defendant. This evidence was insufficient to rebut the mute evidence offered by plaintiff that defendant had paid far less than the property was worth when he acquired it.

The only other evidence offered by defendant was of expenditures he made in the development of the property, including the construction of an air strip, a road, a bridge and some dredging work, but all of this took place more than a year after he acquired the property and would not serve to explain why the sales of the 14 parcels in the first year were made for more than $22,000.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of defendant in reconvention, The Board of Commissioners for the Lafourche Basin Levee District, and against plaintiff in reconvention, Dr. William J. Elmer, dismissing his reconventional demand at his cost.

Reversed and rendered.

STOULIG, Judge

(dissenting).

I respectfully dissent. We remanded this case to permit both litigants to adduce evidence on the market value of the land in 1949, the date of the Zodiac-Elmer sale. The point of inquiry was to determine whether the purchase price was so minimal that it would have caused a reasonable man to suspect the title was tainted or so insufficient as to “excite his inquiry,” thereby imposing the obligation upon the purchaser to investigate the title. The documents and testimony produced on the remand added nothing of probative value.

Plaintiff filed 33 acts of sale into evidence whereby Dr. Elmer sold subdivided tracts from the property he bought in 1949 for $22,000. Although the purchase price for the entire tract was $3,300 in 1949 and the later sales of a small portion totalled approximately eight times the amount of the original purchase price, this proves nothing. Plaintiff failed to establish what expenses Dr. Elmer incurred in subdividing the undeveloped lands into individual lots, nor the extent and costs of the off-site improvements. The Board of Commissioners seeks to have us use as a comparable the price of subdivided lots to establish the original market value of the undeveloped land, part marshland and sea marsh. For obvious reasons there is no common basis for comparison. State ex rel. Sewerage Dist. No. 3 v. Bourgeois, 232 So.2d 872 (La.App. 4th Cir. 1970). Another transaction offered as comparable is a sale of property on Grand Isle, a well-established resort community where the property is totally dissimilar in use and character to that acquired by Dr. Elmer in 1949.

Defendants’ comparables were rendered equally useless by the instruction to their abstractor to look for:

“ * * * sales of larger tracts of land * * * within a basic price range * * *. The basic range was from zero to seven dollars * * * ”

By setting a $7 ceiling on this search, the comparables gathered by defendants’ ab-stractor were valueless as reflecting the true and actual market value of the property.

Title should be confirmed in Dr. Elmer. Plaintiff, alleging Dr. Elmer’s bad faith, had the burden of proving the assertion. C.C. art. 3481 states:

“Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.”

The burden devolved upon the plaintiff to rebut the presumption that Dr. Elmer acted in good faith. To overcome the effect of this presumption, plaintiff had to prove that Dr. Elmer commenced his possession in bad faith. (C.C. art. 3482) The record does not sustain a finding that plaintiff met this burden of proof by a preponderance of the evidence.

As a corollary to the well-established jurisprudence that a tax sale, a sale or a quit-claim deed without warranty based on a tax adjudication can serve as a basis for a 10-year good faith prescriptive title, it follows that the acquisition of realty under one of these forms of conveyances cannot in itself be legally construed as indicative of bad faith. Nor will recitals in the instrument of non-warranty, declaration of possession by the seller, assumption of unpaid taxes or redemptive procedures by the purchaser taint the transaction with bad faith.

A minimal purchase price in itself is insufficient to destroy the presumption of good faith. There is never a reasonable relationship in value between the market value of the property and the amount for which it is adjudicated at a tax sale, yet such a deed can serve as the basis for a 10-year prescriptive title. Price is but one of the many elements that must be considered in the determination of the issue of good faith. In matters of 10 years good faith prescription, substantial disparity between the acquisitive price and the market value of the realty is not per se bad faith.

Thus from the foregoing the determination of bad faith must be adjudged upon the totality of all circumstances attendant on the confection of the conveyance. No one factor alone has greater significance than the others unless the facts in the particular case clearly demonstrate it to be the decisive or one of the overriding considerations. However nothing will relieve the litigant who alleges bad faith from the obligation of proving it, thereby rebutting the presumption of the possessor’s good faith.

As I view the record as now constituted it reflects Dr. Elmer bought a large tract of land, under a non-warranty deed from a tax purchaser, for a little less than $2 per acre. The value of comparable property at the time of his purchase is unknown. The plaintiff has failed to establish any of the factors that would constitute Dr. Elmer a possessor in bad faith, particularly at the commencement of his possession, and therefore the presumption of good faith accorded in matters of prescription has not been rebutted.

For these reasons, I am of the opinion that the judgment of the trial court should be affirmed.

MORIAL, Judge

(dissenting).

I dissent for the reasons assigned by STOULIG, J.

      . This approach is in accord with State v. Up-to-Date Shoe Repairing Co., Inc., 178 La. 1068, 152 So. 906, and In Re Quaker Realty Co., 127 La. 208, 53 So. 526.

      . The trial judge found that the property was worth $6 per acre.

      . Jacobs v. Southern Advance Bag & Paper Company, 228 La. 462, 82 So.2d 765 (1955); Smith v. Southern Kraft Corporation, 202 La. 1019, 13 So.2d 335 (1943); Dupuy v. Joly, 197 La. 19, 200 So. 806 (1941); Land Development Co. v. Schulz, 169 La. 1, 124 So. 125 (1929); Nugent v. Urania Lumber Co., 16 La.App. 73, 133 So. 420 (2d Cir. 1931).


author: BOUT ALL, Judge. REDMANN, Judge LEMMON, Judge GULOTTA, Judge

text:
    Louis CHARBONNET, III v. James J. HAYES, Respondent-Contestee, and Orleans Parish Democratic Executive Committee Nominal-Respondent.
    No. 7297.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 1975.
    Writ Refused Sept. 10, 1975.

      Robert J. Ziblich, New Orleans, for Louis Charbonnet, III, contestant-appellee.
    Ronald J. Rakosky, New Orleans, for James J. Hayes, and others, respondents-contestees.
    Peter J. Castaño, Associate Trial Counsel, New Orleans, for petitioner-contestant.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT and BEER, JJ.
   BOUT ALL, Judge.

Louis Charbonnet, III, as an elector and a candidate for the office of Representative from the Ninety-Sixth Legislative District of Louisiana, brought suit under LSA-R.S. 18:396 objecting to the candidacy of James J. Hayes for that office, contending that Hayes was not qualified to be a candidate because he was not actually domiciled in Legislative District 96 for the full year preceding the time of qualification. After trial, the District Court found that Hayes “was not acutally domiciled for the preceding year in Legislative District Ninety-Six” and rendered judgment in the contestant’s favor, enjoining the Orleans Parish Democratic Executive Committee from certifying Hayes as a candidate. Hayes appeals. We affirm.

The controlling principle of law is that set out in Louisiana Constitution of 1974, Article III, § 4(A), as follows:

“Section 4. (A) Age; Residence; Domicile. An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided- in the state for the preceding two years, and been actually domiciled for the proceeding year in the legislative district from which he seeks election is eligible for membership in the legislature.”

The Louisiana Civil Code furnishes the following definition of domicile:

“Art. 38. The domicile of each citizen is in the parish wherein he has his principal establishment.
“The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.”

Our courts have frequently interpreted the meaning of the word “domicile”. We refer to a number of cases in which the “domicile” or “principal establishment” has been jurisprudentially restated to be “the principal domestic establishment”. Zinko v. Zinko, 204 La. 478, 15 So.2d 859 (1943); Mosely v. Dabezies, 142 La. 256, 76 So. 705 (1917); Hyman, Lichtenstein & Co. v. Schlenker & Hirsch, 44 La.Ann. 108, 10 So. 623 (1892); Succession of Franklin, 7 La.Ann. 395 (1852). This is based upon where a person sleeps, takes his meals, has established his household, and surrounds himself with his family and the comforts of domestic life. In establishing domicile, intent is based on actual state of facts and not what one declares them to be. Successions of Rhea, 227 La. 214, 78 So.2d 838 (1955).

We also note a number of cases involving candidates for election. However, most of these cases involve requirements of “residence” not “domicile”. We refer to the case of Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921) involving an interpretation of the phrase “actual bona fide resident”. See also Melerine v. Democratic Parish Executive Committee, 164 La. 855, 114. So. 711 (1927). We also refer to the case of Brown v. Democratic Committee, Court of Appeal, Fourth Circuit, 238 So.2d 48 (La.App. 4th Cir. 1970) wherein we considered only residence.

We relate the above because the new Constitution of 1974 in Article III, § 4(A) sets out for the first time a requirement of being “actually domiciled” in the legislative district. In the previous constitutional provision, Art. 3, § 9 of the Constitution of 1921, the requirement was that a representative candidate be an “actual resident”. See Stavis v. Engler, 202 So.2d 672 (La.App.1967) and McIntire v. Carpenter, 202 So.2d 297 (La.App.1967).

The substitution of the word “domiciled” for “resident” effects a considerable change in the requirements of candidacy. Additionally, we do not consider the inclusion of the word “actually” to be a mere surplusage or a redundacy because some act of residing has always been required for establishment of domicile. We consider that the framers of our present constitution intended to ensure that a candidate seeking to represent the people of a district does truly live amongst those people and does not simply establish a domicile by declaration of intentions accompanied by some minimum acts of residence. As we see it, the constitution requires adherence to the factual concept of habitual residence and principal establishment, and, where a person resides alternately in several places, he is only qualified for election purposes in that place where he maintains bona fide living quarters in which he actually lives a substantial part of the time. It emphasizes the facts of living in a place, rather than simply maintaining a bedroom elsewhere which one may occasionally retire to. The determination of actual domicile is dependent on the facts in each particular case. The burden of proof is upon the contestant.

With these principles before us, we proceed to a consideration of the facts herein.

The pertinent period with which we are vitally concerned is the year precedent to August 4, 1975. The contestant concedes that Hayes actually resided in the 96th District until August, 1973. Prior to this time, Hayes, who is a 40 year old bachelor, had an apartment on Ursulines Street, but he testified that he lived with his mother nearby on N. Robertson Street. Both premises are within the District. In August, 1973 Hayes gave up his apartment on Ursulines and moved into an apartment at Smith Hall, 2101 Louisiana Avenue, on August 15, 1973. This apartment house is outside the 96th District. Hayes entered into successive leases on this apartment, the last from May, 1974 to May, 1975. This lease was cancelled by agreement on September 30, 1974 because Hayes, in his capacity as organizer for the Southern Region of the National Tenants Organization, went to Alabama to help organize a group there from October 12, 1974 to the weekend preceding Mardi Gras, Feb. 11, 1975. Thus we are primarily concerned with the narrow issue of whether the actual domicile of Hayes during the period August 5, 1974, to the first part of October, 1974, was at his mother’s apartment on N. Robertson St. or his apartment on Louisiana Ave.

We believe a fair evaluation of the evidence leads to a preponderance establishing the actual domicile on Louisiana Avenue. Although Hayes testified that he always lived mainly at his mother’s, he could not or would not attempt to say what the extent of his living there amounted to. His mother and a neighbor, Mrs. Queen, gave testimony that he lived there most of the time. Unfortunately they failed to reckon with Hayes’ admitted absence from the State of Louisiana from October, 1974 to Mardi Gras weekend, 1975, and testified Hayes was there daily, Mrs. Queen for the entire period and Mrs. Hayes for approximately half. There were a number of conflicts in the testimony of these ladies with other testimony such that the trial judge could have made a credibility decision and disbelieved all of their testimony.

However we place more importance on the credibility of Hayes testimony. His testimony is to the effect that although he leased the Louisiana Avenue apartment from August 15, 1973 to September 30, 1974, he seldom used it, but held it for the convenience of friends, most from out of town, who might call upon him for a place to stay — this, at a monthly rental of $151.-00 on an income of an estimated $1400.00 during the entire time of rental.

Our reading of the record is that the trial judge made a credibility evaluation of the testimony of Hayes, his mother and Mrs. Queen, and gave little weight to their testimony. We accept this credibility call.

At the same time, the record shows sufficient evidence to support the trial judge’s finding and preponderates in favor of a Louisiana Avenue domicile. The testimony of the building superintendent, Oliver B. Thompson, Assistant Administrator of Flint-Goodrich Hospital, is to the effect that Hayes actually lived in that apartment. He received his mail there and had his telephone there. Eric Coleman testified that Hayes did not live at his mother’s house but lived elsewhere. The testimony of Peter Castaño, although suspect standing alone, nevertheless corroborates the testimony of these witnesses.

We believe the evidence on the whole shows that Hayes used his mother’s address simply as a matter of convenience and to maintain a “political domicile” while he was “actually domiciled” on Louisiana Avenue in August and September, 1974. We find no error in the decision of the trial court.

The judgment appealed from is affirmed at appellant’s costs.

Affirmed.

REDMANN, LEMMON and GULOT-TA, JJ., dissent.

MORIAL, J., recused.

REDMANN, Judge

(dissenting).

Domicile is not a new word coined by the Louisiana Constitutional Convention of 1973. Domicile does require intention and fact — the animus manendi et revertendi, and physical presence as well. The intention seems overwhelmingly established, by documents from an unsuspicious time. The physical presence is sharply limited by the residence at the Louisiana avenue apartment and the several-months trip to Alabama, but it was not shown to be nonexistent. ■

The judgment should be reversed.

LEMMON, Judge

(dissenting).

I agree with the majority’s analysis of the controlling law. I disagree, however, that the use of the words “actually domiciled” in La.Const., 1974, Art. 3, § 4(A) was intended to change existing jurisprudence. Previous decisions have rejected attempts at qualifying for office by “simply maintaining a bedroom elsewhere to which one may occasionally retire.” See, for example, McIntire v. Carpenter, 202 So.2d 297 (La.App. 4th Cir. 1967).

The apparent purpose of residency requirements in the qualifications for a representative office is to insure that the person elected has sufficient contacts with the election district so as to be an effective spokesman for that district as part of our representative form of government. Previous decisions have sought to give effect to this purpose. In this respect I do not believe “actually domiciled” represents a substantial change from previous jurisprudential determinations of “actual resident”, as required by La.Const., 1921, Art. 3, § 9.

In the present case I disagree that the evidence preponderates in favor of a conclusion that Hayes’ contacts with the 96th district were not sufficient.

In my .opinion Hayes did not lose his domicile when he rented the apartment on Ursulines Street in 1971 (which two other people also “used”). And the Louisiana Avenue apartment was apparently a continuation of whatever “pad” arrangements he had on Ursulines Street. I therefore conclude it was unnecessary for Hayes to reestablish a domicile on North Robertson Street, either after he “changed apartments” from the temporary apartment on Ursulines (to which the contestant also had a key) or after he gave up the temporary apartment on Louisiana to go to Alabama in connection with his activities on behalf of the National Tenants Organization.

Hayes’ 1971 move into the Ursulines apartment merely involved a transfer of some of his clothing; he had no furniture except two stereo phonographs which he left at Robertson Street. He continued his same daily pattern of eating lunch and dinner with his mother. He continued the same daily contacts with the disrtict in civic, social and political activities. His only change was to sleep perhaps most of his nights away from Robertson Street. The same life style apparently continued with the move to Louisiana Avenue, where he stayed only 12 or 13 months.

Hayes’ intention to maintain his domicile at Robertson Street is borne out by considerable evidence. The only difficult determination'is whether he maintained sufficient contacts there so that the Robertson Street residence qualified as a principal establishment within the contemplation of C. C. art. 38.

While much of Hayes’ evidence was unsatisfactory and apparently rejected, the credible evidence in my opinion does not preponderate in favor of a conclusion that Robertson Street was not Hayes’ principal establishment, and the challenge to his qualifications should be dismissed.

GULOTTA, Judge

(dissenting)!

Plaintiff has the burden of showing by positive and satisfactory proof that Hayes changed his domicile from the 96th

District and that he has not been “actually domiciled’’ m the legislative district for a year preceding the date he seeks to qualify as a candidate for the legislature from that district.

We are confronted with the legal question of the sufficiency of evidence offered by plaintiff that defendant actually changed his domicile. My evaluation of the testimony is that plaintiff succeeded in showing only that the 40 year old unmarried Hayes had a residence outside of the 96th District in addition to his actual domicile with his mother within the district. Hayes has been continuously registered as a voter in the 96th District since September, 1968, and has consistently voted there. He was elected to the Human Relation? Committee from the 96th District in 1972 and unsuccessfully sought election from the same district on August 17, 1974. On a resident fishing license which he obtained on July 2, 1974, Hayes gave his address as 936 N. Robertson, within the legislative district. His driver’s license, which he obtained on July 10, 1974, also indicated defendant’s address as 936 N. Robertson.

Hayes testified that he lived with his mother at 936 N. Robertson Street in August, 1974 and at 1013 N. Robertson Street in August, 197S. Defendant testified that he had an apartment on Ursulines Street (within the district) up to July, 1973, after which he obtained the apartment on Louisiana Avenue (outside the district.) Hayes does not deny that he had the Louisana Avenue apartment under lease during the summer of 1974 and that he was visited from time to time by friends and acquaintances, including witness Cas-taño. He stated, nevertheless, that he continued to maintain his actual domicile with his mother in the district.

Mrs. Elva Hayes, defendant’s mother, corroborated defendant’s testimony that he lived with her at 936 N. Robertson Street. She testified that defendant had meals with her at her home, slept three, four or five nights a week at her home but that he spent weekends away. She further testified that she knew her son had apartments on Ursulines Street and on Louisiana Avenue. Ruth Queen, a neighbor of Mrs. Hayes on N. Robertson Street also testified that Hayes lived with his mother in the 96th District.

It is apparent from the foregoing that Hayes has maintained his actual domicile within the district from 1968 up until and including the time that he qualified as a candidate for the House of Representatives in August, 1974. It is clear also that while he maintained his actual domicile with his mother at the two N. Robertson Street addresses, he nevertheless had resident apartments on Ursulines Street (within the district) and on Louisiana Avenue (outside the district.)

The evidence, on the other hand, relied on by plaintiff to seek disqualification of Hayes, is insufficient. Castaño testified that Hayes resided at 617 Ursulines Street within the district until the summer of 1973, and that defendant moved to the Louisiana Avenue address where he lived until the latter part of August, 1974. Cas-taño stated that he had not visited Hayes on N. Robertson Street but that he had visited Hayes at the Louisiana Avenue address. Castaño further testified that he had no knowledge that Hayes lived at the N. Robertson Street addresses.

Eric Coleman, an employee of plaintiff Charbonnet, stated that he had spent nights at the 936 N. Robertson Street address and that Hayes did not stay overnight on the occasions that Coleman did. He testified, however, that he saw Hayes at the N. Robertson Street address and that Hayes had taken some meals there. Ronald Chisolm testified that he had not stayed an entire night at N. Robertson Street but that he had spent overnight with Hayes at the Louisiana Avenue address. He, however, testified that Hayes lived with his mother.

In the final analysis, plaintiff has failed to produce sufficient evidence to disqualify defendant Hayes on the grounds that he is not actually domiciled within the 96th District.

Absent strong and convincing evidence of a candidate’s disqualification to seek office, courts should be reluctant to invade the elective process. Selection of candidates for office, if at all possible, must be left to the people and selection by judicial fiat should be zealously avoided. Under the circumstances in the instant case, I would not disqualify candidate Hayes from seeking election to the legislature from the 96th District. Accordingly, I dissent.

      . We are informed that the official document contains the word “preceding”.

      . It is indeed arguable that use of the word “domiciled” indicates a greater emphasis on intention, which is not the significant consideration when residence is the criteria.

      . He did not change his voter registration from 1013 Robertson when he ran for the Human Relations Committee (although he then had the apartment on Ursulines Street in the same election district), but did change in connection with the family’s move to 936 Robertson in May, 1974 (at approximately the same point in time he informed the Louisiana Avenue landlord he was giving up the apartment' at the end -of September),. .He did, however, change the registration back to 1013 when he returned from Alabama.
      Other supportive evidence was his 1974 driver’s license (changed to 936 from 1013 which showed on the 1972 license, obtained after he rented the Ursulines Street apartment) ; his fishing license; and a record (showing a Robertson Street address) of an arrest in connection with a tenants’ strike.

      . In re Adoption of Rials, 220 La. 484, 56 So.2d 844 (1951), the Louisiana Supreme Court stated that a party seeking to show a change of domicile must overcome the presumption that it has not been changed by positive and satisfactory proof. In Succession of McElwee, 276 So.2d 391 (La.App., 2nd Cir. 1973), the 2nd Circuit postulated the rule that the burden is upon a party endeavoring to avail himself of a change in domicile to prove the change beyond a reasonable doubt. See also Succession of Simmons, 109 La. 1095, 34 So. 101 (1903).


author: LEMMON, Judge.

text:
    Alvin M. COTLAR v. GULF INSURANCE COMPANY.
    No. 6950.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 1975.

      Herman & Herman, Sidney A. Cotlar, New Orleans, for plaintiff-appellee.

      Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This appeal involves an issue of first impression. Does a collection of Mardi Gras souvenir doubloons, stolen from plaintiff’s house, constitute numismatic property so as to fall within the $100.00 limitation contained in his homeowner’s insurance policy? Defendant-insurer has appealed from an adverse judgment after a trial on the merits.

The policy provided coverage, as to unscheduled personal property, as follows:

“This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling, owned, worn or used by an Insured, while in all situations anywhere in the world. * * *”

Plaintiff purchased coverage under this feature in the amount of $50,000.00. The policy, however, also contained a section entitled “Special Limits of Liability”, which provided:

“2. Under Coverage C, this Company shall not be liable in any one loss with respect to the following named property:
(a) for more than $100 on money, bullion, numismatic property and bank notes;
(b) for more than $500 on accounts, bills, deeds, evidences of debt, letters of credit, notes other than bank notes; passports, railroad and other tickets, securities, and stamps including philatelic property;
(c) for more than $1000 on manuscripts;
(d) for more than $250 on articles of jewelry including watches, necklaces, bracelets, gems, precious and semi-precious stones and articles of gold or platinum and articles of fur or articles containing fur which represents their principal value; * * * ”

Contending that plaintiff’s doubloon collection fell under special limitation 2(a), defendant refused to pay more than $100.-00 for that portion of the loss. Plaintiff then instituted this action.

Mardi Gras souvenir doubloons are round objects, usually made of metal, which are given away by members of carnival organizations. Each organization has its own doubloons designed and produced annually. The vast majority of the doubloons are inexpensive souvenirs thrown by riders on parade floats to onlookers along the parade route; however, some doubloons with a substantial content of valuable metal are given away as favors at balls. No doubloons are offered by the organizations for public sale.

Many people locally began to collect the souvenirs, and doubloons are now bought, sold and traded through public and private channels. Doubloons, of course, have never been used as a medium of exchange.

In support of his position that doubloons do not constitute numismatic property, plaintiff presented an expert in the English language who relied on the following definitions in the Oxford English Dictionary:

(1) Numismatic is defined as “Pertaining to or relating to coins or coinage; consisting of coins.”
(2) Coin is defined as “A dye stamp or piece of money, in particular a piece of metal of definite weight and value, usually a circular disc made into money by being stamped with an officially authorized device.”

Plaintiff also produced the testimony of two numismatists, who were members of the American Numismatics Association. Each opined that numismatic property necessarily is or has been used as a medium of exchange.

On the other hand, defendant relies on the Webester’s New Collegiate Dictionary’s definition of numismatics as “the study or collection of coins, tokens, medals, paper money and similar objects.”

We conclude that doubloons are not included under the policy limitation on numismatic property. The unscheduled personal property coverage of homeowner’s insurance is designed to protect most property found in the home of the average person whose home is insured by the policy. Some items, such as automobiles, do not fall within the scope of this purpose and are specifically excluded. Other items, such as jewelry, are specially limited to an amount of coverage which fulfills the needs of the average homeowner. Thus, an insured who regularly keeps a large amount of jewelry in his home is notified by the limitation that additional coverage must be purchased to satisfy his special needs at his own cost, rather than at a cost to be distributed over the premiums of all insured homeowners.

We construe the $100.00 limitation clause as a whole as one which is intended to limit coverage on property which is money or a form of money. At best doubloons are medals which have no intrinsic monetary value and possess value only in relation to their desirability to collectors. In our opinion the policy limitation was not intended to apply to doubloon collections.

Furthermore, an insurer must clearly express limitations on coverage in order to inform the insured that he must take special measures to establish adequate protection. If ambiguous, the limitation must be construed in favor of coverage.

We hold that the policy language does not, either by the usual signification of the words or by the clear intent of the limiting clause as a whole, adequately inform an insured that the policy does not afford complete protection to a doubloon collection and that he must use scheduled coverage to secure this protection. Since the limitation does not apply, plaintiff is entitled to the full value of the doubloons.

Defendant further contends that the trial judge erred in awarding penalties and attorney’s fees under R.S. 22:658. We agree.

Plaintiff based his argument as to penalties and attorney’s fees on defendant’s failure to produce any expert testimony in support of its interpretation or to show any investigation or inquiry made in reaching its conclusion to impose the limitation. Perhaps this argument would be more persuasive in a case which involves a disputed physical disability or similar factual question. The present case, however, involves solely an interpretation of policy provisions. The penalty issue therefore does not involve a question as to the method of reaching the decision, but rather a question as to whether the decision was reasonable.

Defendant’s broad interpretation of the policy terms, although not accepted by us, cannot be deemed arbitrary and unreasonable, especially in view of the fact that the field of numismatics is now generally conceded to encompass tokens and medals (although perhaps restricted to the older or rarer medals of historical significance) and that the collecting of doubloons is relatively new and is entirely local in interest.

Plaintiff argues, however, citing Albert v. Cuna Mutual Ins. Soc'y., 255 So.2d 170 (La.App. 3rd Cir. 1971) and Niles v. American Bankers Ins. Co., 229 So.2d 435 (La.App. 3rd Cir. 1969), that in matters of policy interpretation an insurer construes its own policy at its risk.

Language in the cases relied on in the Albert and Niles decisions has seemed to indicate that an insurer may seek a judicial decision on its interpretation only at the risk of paying penalties and attorney’s fees if it loses, but those cases involved other evidence of arbitrariness. Thus, the Supreme Court decisions cited in the Albert and Niles cases are distinguishable.

The dissenting footnote in Songe v. Tennessee Life Ins. Co., 260 So.2d 149 (La.App. 4th Cir. 1972), argues in favor of awarding attorney’s fees on the basis that when the insured’s interpretation is reasonable on its face, the policy is at best ambiguous, and the law of construction requiring interpretation favorable to the insured will result in a judgment against the insurer.

We reject this approach. Penalty statutes are imposed to punish arbitrary behavior. If the insurer’s interpretation of its policy provision is reasonable, the denial of the claim is not arbitrary so as to require imposition of a penalty, and the insurer has a right to a judicial determination.

If the statute provided only for attorney’s fees, it would be arguable that the legislature intended to require insurance companies to pay the fees incurred by the insured when the company’s reasonable interpretation of its own policy is rejected by the court, thus granting the insured full recovery for covered losses. The present statute, however, includes a penalty as well as attorney’s fees and is apparently designed to punish arbitrariness. Accordingly, we decline to apply the statute when the insurer’s reasonable interpretation is rejected and the insurer has otherwise not acted arbitrarily.

In the present case defendant denied the claim in excess of $100.00 because of a reasonable interpretation of the policy provision and paid all other losses claimed by plaintiff. We hold that defendant was entitled to a judicial determination of its good faith defense to that portion of the claim.

For these reasons, the judgment of the trial court is amended to delete the award of penalties and attorney’s fees. As amended, the judgment is affirmed.

Amended and affirmed.

      . The origin of the practice was traced to Seur de Iberville, one of the founders of the City of New Orleans, who threw beads and similar objects to the Indians.

      . This dictionary defines the adjective “numismatic” as “1: of or pertaining to numismatics 2: of or relating to currency: MONETARY”.

      . We note, without necessarily approving, a reported New York case involving the theft of a coin collection, in which the court reasoned that coins which are removed from circulation as a medium of exchange and saved by a numismatist become articles of commerce and do not fall under the money limitation of the policy, which defined money as currency, coins, bank notes and bullion. De Biase v. Commercial Union Ins. Co. of N. Y., 53 Misc. 2d 45, 278 N.Y.S.2d 145 (1967).

      .The trial judge classified several of the doubloons, which contained large quantities of valuable metals, as charms and then applied the $250.00 limitation on articles of jewelry to the loss of these particular doubloons valued at $300.00.
      Inasmuch as plaintiff has not applied for an increase, we specifically decline to review the correctness of this $50.00 disallowance.