author: PRICE, Judge.

text:
    Elmer Neal HARDY, Sr., Plaintiff-Appellee, v. A. C. BROWN, Defendant-Appellant.
    No. 13862.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 12, 1979.
    Kitchens, Benton, Kitchens, Pearce & El-kins by Marshall R. Pearce, Minden, for defendant-appellant.

      Robinson & Smith by C. Wayne Smith, Homer, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Plaintiff brought this action to establish the boundary between land owned by him and defendant situated in the SW ¼ of the NE ⅛ of Section 25, Twp. 22 N, R 6 W, in Claiborne Parish, Louisiana. The chain of title of each party was derived from a common ancestor who conveyed to plaintiff’s predecessors in title that part of the subject quarter section lying west of the Rocky Spring Road and conveyed to defendant’s predecessors in title that part of the quarter section lying east of this road. As the deeds originating these chains of title were in 1869 and 1872, the question at issue is the precise location of the Rocky Spring Road during those years. As shown on the map of a survey made by Roy B. Morgan in 1949, there are two abandoned roadbeds running through the SW ¼ of the NE Vi with approximately eight acres of land lying in between, and ownership of this acreage depends on which of the abandoned roadbeds was the Rocky Spring Road in 1869-1872.

The trial court found the abandoned easterly roadbed as reflected on the map prepared by Morgan to be the location of the original Rocky Spring Road and declared it to be the boundary between the two estates. We affirm the trial court judgment for the reasons assigned herein.

Plaintiff contends that prior to 1885, the east roadbed was the Rocky Spring Road and that its location was moved further to the west during this year to avoid an extremely low area which made use of the road difficult during wet weather.

Defendant, on the other hand, contends the east roadbed was never anything but a private road providing access to the house of a neighbor on property north of defendant’s land, and that the west roadbed had always been the location of the Rocky Spring Road until it was moved to its present location some time after 1900.

The trial court’s reasons for accepting plaintiff’s position are in pertinent part as follows:

Because there was no one alive with firsthand knowledge as to the location of the original Rocky Spring Road, this Court relies in part on affidavits executed on October 20, 1949, by W. A. Williams (78 years of age) and Tom J. Richardson (83 years of age) dealing specifically with that question. These affidavits identify the East Road as the Rocky Spring Road.
The Court also is impressed by the affidavit of the defendant; A. C. Brown, given on December 6, 1949, in which he admitted the possession of plaintiff and stated:
“This line (East Road) is recognized by both parties.” (Exhibit “G”).
This statement was made after the survey (P-6) and clearly related thereto, as evidenced by the testimony of Mr. Jimmy W. Carter (Page 68, 71, 72, 76, and 86). Mr. Carter testified that the defendant:
“. . . . showed us corners where to start,” (See Exhibit “A”, the proces verbal of survey.)
and indicated his lands to be east of the East Road. This statement was given in conjunction with title work involving the subject tracts for the express purpose of determining the ownership (both tracts were leased on the basis of this curative work) and was certainly given at an “innocent” time. Although the defendant denies having been present during the survey, the foregoing testimony and that of his son, David Brown, clearly establishes the contrary.
The Court made an on-site inspection of both roads, walking the full distance of each, in the presence of the defendant’s attorney, his son, David Brown, and the plaintiff. There is no question in this Court’s mind that these two roads existed at one time, that erosion in the East Road was many times more significant than in the West Road and that the evidence of timber or timber remains therein identified the East Road as the older of the two roads.
The Court was impressed with the testimony of Mr. Holsey White, a black man aged 76 years and lifelong resident of the area, who identifies the East Road as the Rocky Spring Road and testifies firmly that plaintiff owned and farmed the land on the west side, whereas the defendant owned the land on the east side of the East Road. He testified further that he had never seen the defendant farm any land on the west side and that he never heard of any claim by the Browns to those lands. He testifies that when he was a little boy he traveled the East Road, known in the community as the Rocky Spring Road.
The Court was not impressed with the testimony of Mr. Napoleon Battle and the testimony of Mrs. A. C. Brown was confused.

Defendant asserts numerous specific assignments of error to the findings of the trial court. The principal complaints are that the court relied on affidavits of persons now deceased along with other inadmissible evidence and gave improper weight to a personal inspection of the sites of the two roadbeds rather than basing its decision on strong inferences that could be drawn from an examination of the public records as to the location of the subject road.

Defendant contends from an examination of the description in other contemporary deeds of record concerning lands in an adjoining quarter section in which the Rocky Spring Road was referred to as a boundary, it can logically be determined that the west roadbed as shown on the survey has always been the location of the Rocky Spring Road. For example, defendant refers to the conveyance in 1869 from James T. Fortson to Joseph Richardson by the description “NW ¼ of the SE Vi of Section 25, lying west of the Rocky Spring Road.” This quarter section lies adjacent to the subject quarter section on the south. Defendant contends that as the map prepared by Morgan shows no part of the easterly abandoned roadbed in the NW ¼ of the SE ¼ of Section 25, and as the conveyance from Fortson to Richardson was prior to the date plaintiff contends the road was moved (1885 or 1886) then the reference to the Rocky Spring Road in the description in that conveyance illustrates that the road at that time must have been the westerly road which the Morgan survey shows running through the NW ¼ of the SE ¼. This argument, although persuasive, does not outweigh the evidence relied on by the trial judge. The survey shows the east roadbed running northwesterly through the NE Vi of the SE ¼, and as it approaches the north line of the quarter section, it traverses the common line between the NW and NE quarters of the SE ¼ and swings altogether into the subject SW Vi of the NE Vi.

It is therefore logical that in 1869, without the benefit of maps showing the exact relationship of the road to established governmental corners, the act of conveyance was prepared under a reasonable belief that this easterly roadbed was partially in the NW Vi of the SW ¼.

This conclusion is supported by the description contained in two other deeds from Fortson in 1874, in which he conveyed by reference to the Rocky Spring Road, but did not attempt to place the road in either the NW Vi or NE ¼ of the SE ¼, but rather conveyed by reference to that portion of the N ½ of the SE ¼ lying East of the Rocky Spring Road in a deed to H. W. Minfee, and that portion of the N ⅛ of the SE ¼ lying West of the Rocky Spring Road in the conveyance to James Brown. The failure to designate the specific quarter section could logically show an uncertainty on the part of the vendor as to the location of the road to the governmental quarter section line. We do not therefore find the trial court was in error in relying on other evidence to fix the location of the road.

Defendant contends the trial court erred in admitting into evidence and relying on affidavits executed by W. A. Williams and Tom J. Richardson in 1949. Both of these persons were dead at the time of trial and defendant objected to the admissibility of the affidavits contending this was hearsay evidence.

Plaintiff admits the affidavits are hearsay, but contends they were properly admitted under an exception to the hearsay evidence rule as traditional or reputation evidence of ancient boundaries.

While we are unaware of any Louisiana jurisprudence upholding this exception to the hearsay rule, we find in the great majority of states reputation or traditional evidence is regularly admitted on questions of the private boundaries. McCormick, Evidence § 324 (2d ed. 1972), 12 Am.Jur.2d verbo, “Boundaries,” § 106-110. Moreover, the federal courts recognize the admissibility of reputation evidence to prove private boundaries as an exception to the hearsay rule provided the reputation antedates the controversy. See Fed.Rules Evid. 803(20).

According to 1 Conrad, Modern Trial Evidence, § 314, the foundation for admissibility of such evidence requires:

In the first place, present day reputation as to these matters is not competent. Another way of stating the rule is to assert that the only tradition or reputation evidence admissible to establish a fact or matter permissible under this section is that of a past, not living generation.
Secondly, proof under this exception is limited to declarations of persons who are since deceased, supposed to be dead, or unavailable as witnesses.
Thirdly, the declarants, under the circumstances, must be presumed to have knowledge of the facts upon which the declarations were founded or it must be shown that the declarants actually had adequate knowledge of the facts stated or were in a position to know such facts.
Finally, the declarations must be ante litem motam, that is, before the controversy in question arose, so that the de-clarant has no motive to make a false assertion.

Williams and Richardson were respectively 78 and 83 years of age in 1949 when their affidavits were taken by Jimmy W. Carter, an employee of T. L. James, Co., who held mineral leases on the lands of plaintiff and defendant. There had been no dispute between the parties at this time over boundaries and the T. L. James Company took the affidavits and had a survey made to clarify the total acreage owned by each landowner following a title examination. Neither of the affiants had any interest in the matter and were not aware of any dispüte between plaintiff and defendant. They were apparently the oldest persons in the community having knowledge of the original location of the Rocky Spring Road. Their affidavits given in 1949 meet all of the requirements set forth above for admissibility of tradition evidence. The admissibility of this evidence also is consistent with the view that prerequisites for an exception to the hearsay rule are necessity and circumstantial guaranty of trustworthiness.

A general lack of other reliable sources of information provides the necessity. The guaranty of trustworthiness is provided by restricting the use of reputation evidence to those subjects in regard to which individuals with personal knowledge are likely to have disclosed facts which have been subjected to prolonged observation and discussion by the community. Under such circumstances, it is unlikely that a falsehood could become generally accepted in a community as the truth. McCormick, Evidence § 324 (2d ed. 1972).

We therefore find the trial court properly admitted the affidavits under a well recognized exception to the hearsay rule.

We further find the proces verbal of the surveyor, Roy B. Morgan, and the abstracts of title and title opinion procured by T. L. James during its title investigation in 1949 are admissible under the guidelines of necessity and reliability set forth in Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961).

Defendant also contends the trial court erred in misconstruing an affidavit signed by defendant, A. C. Brown, in 1949 during the survey and title activities of T. L. James in which defendant declared plaintiff’s father, and ancestor in title, had peacefully possessed property lying to the west of the Rocky Spring Road. Conceding that defendant did not intend to make such an admission in the affidavit, there is sufficient evidence otherwise in the record to support the trial judge’s finding that the plaintiff or his family possessed the land lying between the two abandoned roadbeds for a period of approximately fifty years prior to the filing of this action without any protest being made by defendant. La.C.C. Art. 794 provides:

When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

Defendant lastly contends the trial court was unduly influenced by a personal inspection of the two abandoned roadbeds in resolving which was the original Rocky Spring Road. Such a physical inspection is certainly within the discretionary authority of the trial court, and it is apparent from the court’s reasons for judgment that the only observations which influenced the court were the factors of erosion suggesting the comparative age of each roadbed. The visual inspection was apparently weighed along with the other evidence by the court in making its determination that the east roadbed was the original Rocky Spring Road, and it does not appear that the inspection was given improper weight.

For the foregoing reasons, the judgment is affirmed at appellant’s cost.

      . Although plaintiffs immediate deed of acquisition describes his eastern boundary as the Rocky Spring Road and defendant’s deed refers to his western boundary as the Colquitt-Lisbon Road, it is stipulated that these were one and the same road.

      . See our earlier remand of this case at 345 So.2d 971 (La.App.2d Cir. 1977).


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Bobby HUNTER et al. Plaintiffs-Appellants, v. HEALTH & SOCIAL & REHABILITATION SERVICES-DIVISION OF HEALTH, MAINTENANCE AND AMBULATORY PATIENTS SERVICES, Defendants-Appellees.
    No. 13831.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 7, 1979.

      David A. Rothell, Mansfield, for plaintiffs-appellants.
    Cook, Clark, Egan Yancey & King by Herschel E. Richard, Jr., Shreveport, for Louisiana Dept, of Health, Maintenance & Ambulatory Patient Services, a subdivision of La. Health & Human Resources Administration and Francis Everett Brander, individually and representative of Underwriters at Lloyds, London.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Charles L. Mayer, Shreveport, for Continental Casualty Co. & St. Paul Fire and Marine Insurance Co.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Defendants filed a motion to dismiss plaintiffs’ appeal from an order denying plaintiffs a jury trial. We grant the motion and dismiss the appeal.

On July 23, 1974, the trial judge signed an order for jury trial and fixed the bond at $2,500.00. After some intervening proceedings, plaintiffs in October, 1978 filed a motion to set the jury trial during the month of December. On October 31,1978 the trial judge signed the following order. “Considering the above and foregoing motion and the court having noted that plaintiff has failed to forward the bond as previously ordered herein; It is ordered that a trial of this matter by jury be denied and that the matter be tried by the court on all issues.” On November 2, 1978, plaintiffs filed the jury trial bond and later took this suspen-sive appeal.

Defendant filed a motion to dismiss the appeal on the grounds that an order denying a jury trial is not appealable, citing Guidroz v. State Farm Fire & Casualty Company, 334 So.2d 535 (La.App. 1st Cir. 1976). Plaintiffs have responded to the motion citing Jobe v. Hodge, 207 So.2d 912 (La.App. 2nd Cir. 1968) rev. on other grounds 253 La. 483, 218 So.2d 566 (1969) in which this court held that an interlocutory order denying a jury trial is appealable. Plaintiffs urge that even if the order is not appealable and application for writs is the proper remedy, this court should go ahead and pass on the correctness of the order since the case is before the court, as was done in Guidroz, supra.

We recently held in Ruston State Bank v. Theodus, 366 So.2d 218 (La.App. 2nd Cir. 1978) that an order denying a jury trial is an interlocutory order which is not appeala-ble absent irreparable injury and that an application for remedial or supervisory writs is the appropriate method to seek discretionary review by the appellate court of such an interlocutory order. A denial of a jury trial does not in and of itself cause irreparable injury.

We note the recent case of Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4th Cir. Nov. 1978) which discusses the standard for determining whether an interlocutory judgment may cause irreparable injury. The court, citing Feitel v. Feitel, 169 La. 384, 125 So. 280 (1929), held that the standard is whether any error in the judgment may be corrected as a practical matter in an appeal following the determination on the merits. As an illustration, the court noted that if a judgment incorrectly denies a jury trial the aggrieved party cannot obtain practical relief by an appeal following the determination of the merits.

The standard, as this court sees it, is not whether a possible procedural error in the course of litigation in the trial court may be corrected on appeal after trial on the merits, but is whether the procedural error will have such an effect on the merits of the case that the appellate court cannot correct an erroneous decision on the merits. Review and correction of every claimed trial court procedural error by the appeal process is neither desirable nor necessary. The result of that process would be piecemeal appeals and undue delay. For example, in this case and in Ruston State Bank, supra, suspensive appeals were taken which would have resulted in delays of several months if the appeals were allowed. Even if a party is incorrectly denied a jury trial, it does not follow that the outcome of the merits of the case will be different or erroneous. Judges are at least as competent as juries to try cases. Facts and law are subject to appellate review, and errors on the merits may be corrected, whether a case is tried by judge or jury.

The better procedure for review of an order denying a jury trial, and most other orders involving trial court procedure, is by application for supervisory writs. Review is much more expeditious. Stay of trial court proceedings pending the application is within the discretion of the trial court and the court of appeal. Considering the importance and fundamental nature of the right to trial by jury, orders denying trial by jury will be closely scrutinized by the appellate court.

We adhere to our previously expressed opinion that an order denying a jury trial is not appealable absent a specific showing of irreparable injury, and that an application for writs is the appropriate method to seek review. Since the interlocutory judgment in this case is not appealable, this court has no jurisdiction and cannot at this time pass on the correctness of the order denying a trial by jury.

The appeal is dismissed at plaintiffs-appellants’ cost.

Appeal dismissed.


author: SWIFT, Judge. WATSON, Judge. SWIFT, Judge,

text:
    Joseph Dennis THOMPSON, Plaintiff-Appellee, v. Wanda Lelia COURVILLE, Defendant-Appellant.
    No. 6819.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    On Rehearing June 7, 1979.

      Hawsey and Koepp by L. E. Hawsey, III, Baton Rouge, for defendant-appellant.
    Fruge & Vidrine by Richard W. Vidrine, Ville Platte, for plaintiff-appellee.
    Before WATSON, SWIFT and STOKER, JJ.
   SWIFT, Judge.

This is an appeal from a judgment denying a contradictory motion to determine and make executory the amount of past due child support allegedly owed appellant, Wanda L. Courville Young, by her former husband, Joseph D. Thompson, appellee.

The parties were divorced in 1966 and custody of the four minor children of the marriage was granted to the mother. The decree also awarded her $125.00 per month for child support. In a subsequent proceeding this was increased to $225.00 per month, effective May 1, 1970. In August of that year the appellant married John E. Young and on December 3, 1970, a consent judgment was signed on a joint motion of the parties reducing the monthly child support payments to $185.00 as of September 12, 1970.

At the trial of the motion giving rise to this appeal, a certified copy of a judgment dated October 29, 1971, further reducing the support payments to $135.00 per month, was admitted in evidence over appellant’s objection that the copy was not the best evidence. However, it was stipulated that independent searches had been made by counsel for both parties, as well as the clerk of court, and neither this judgment, the rule nor any of the proceedings concerning same appear in the clerk’s office. The only thing found therein pertaining to such judgment were entries in the clerk’s charge book which, according to the chief deputy clerk, reflect that on October 12, 1971, a motion to reduce alimony and a copy were presented and charges of $1.00 for filing and $1.00 for certifying the copy were made. On the same day a charge of $1.50 was made for issuing a citation, a copy thereof and a return. A charge of $2.00 was made by the clerk’s office on October 29, 1971, for the judgment to reduce alimony and providing two certified copies thereof. The charge book contained no entry of a sheriff’s cost or fee for serving the motion. However, it reflects clerk’s charges in this case on November 8, 1971, for filing a rule for contempt and the issuance of a citation. Immediately thereunder is an entry dated December 3, 1971, for sheriff’s costs of $4.50 paid to the sheriff of Jefferson Parish.

The appellant and her present husband testified she had never been served with the motion to reduce alimony which apparently resulted in the judgment of October 29, 1971. The latter reflects that she made no appearance at the hearing.

Attached to the appellant’s motion for a new trial, which was denied by the trial judge, is a certified copy of the original docket card of the sheriff of Jefferson Parish, reflecting that on November 23, 1971, his office received from the Evangeline Parish clerk of court a petition and citation filed in this suit, which were served on Wanda Lelia Courville on November 27, 1971. There are no other entries pertaining to this action on the card. Also attached, is an affidavit from a deputy sheriff of Jefferson Parish stating that she is the custodian of the records wherein the original docket card is kept, and from 1969 to April 14,1978, there is no other record evidencing receipt or service by that office of any pleadings or documents in this suit other than shown on the docket card. The appellant and her husband resided in Jefferson Parish in October and November, 1971.

The appellee has paid most of the monthly child support payments provided in the judgments mentioned hereinabove. In addition, he has paid slightly over $7,000.00 to the children as gifts and directly to doctors, merchants, schools and dentists for services rendered them.

The appellant contends that the trial judge erred in concluding that the judgment of October 29,1971, reducing the child support monthly payments from $185.00 to $135.00 per month, was valid and also that appellee was entitled to credit on the monthly sums he was ordered to pay to her for monies that he paid to the children as gifts and to others on their behalf. She also contends she is entitled to interest on the arrearage and attorneys fees.

The appellee has not favored us with a brief and, of course, did not appear before this court for oral argument.

Addressing the first question, under our law while citation is not essential in a summary proceeding a judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity that can be raised collaterally at any time. LSA-C.C.P. Articles 2594 and 2002(2); General Motors Acceptance Corporation v. Gui dry, 177 So.2d 184 (La.App. 3 Cir. 1965); Succession of Barron, 345 So.2d 995 (La.App. 2 Cir. 1977).

Since the judgment of October 29, 1971, reflects that no appearance was made by the appellant at the hearing, its validity depends on whether proper service of appel-lee’s contradictory motion was made on Mrs, Young.

According to General Motors Acceptance Corporation v. Guidry, supra, citation and service of process must be proved by the sheriff’s return alone and parole evidence is not admissible as proof thereof. In the present case no legal evidence was presented to establish that the motion on which the October 29, 1971, judgment was rendered was served upon the appellant since there is no sheriff’s return to this effect in the record. On the contrary, the only evidence on the subject (admissible or otherwise) seems to be that no return was ever made by a sheriff in regard thereto. We are convinced from the evidence which was properly admitted at the trial of the contradictory motion presently before this court that the appellant was never served with the motion to reduce child support that gave rise to the October 29, 1971, judgment and that it was an absolute nullity. The appellant is therefore entitled to have the amount of the past due child support determined and made executory under the judgments of the trial court rendered prior thereto.

As of March 15, 1978, when this motion was tried, the appellee had been ordered to pay monthly child support amounting to $17,749.73. Appellant does not challenge her ex-husband’s right to credit for the funds she actually disbursed on behalf of the children even though she received such payments through checks made payable to the children rather than to her. Consequently, according to “Exhibit A” attached to appellant’s motion herein, which with certain corrections was stipulated to properly reflect these payments, appellee was entitled to a total credit of $13,185.00, leaving a total arrearage of $4,564.73.

In denying appellant’s motion, however, the trial judge concluded that between 1970 and 1978 the appellee had paid more than he was ordered to pay for child support through donations to his daughters and the sums paid directly to physicians, schools, merchants, and dentists on behalf of the children.

In Simon v. Calvert, 289 So.2d 567, 570 and 571, (La.App. 3 Cir. 1974), writ denied, 293 So.2d 187 (La.1974) this Court said:

“The obligation of [a] father is to support the minor children by making payments to the mother, and it is only by so complying that he fulfills his obligation. Rodriquez v. Rodriquez, 245 So.2d 765 (La. App. 4 Cir. 1971). The judgment for child support, as to the amount past due, is the property of the party in whose favor it was given. Coleman v. Coleman, 209 So.2d 801 (La.App. 2 Cir. 1968).’’
“The only remedy available to a father to relieve himself of the obligation of paying child support imposed by a judgment is by proceeding to have the judgment amended, suspended or terminated. Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953); Rodriquez v. Rodriquez, 245 So.2d 765 (La.App. 4 Cir. 1971); Hebert v. Hebert, 159 So.2d 537 (La.App. 3 Cir. 1964). Courts cannot consider equity for the purpose of nullifying or reducing accumulated alimony, which is a vested property right, until the judgment is altered or amended by subsequent judgment or is terminated by operation of law. LSA-C.C.P. art. 3945; Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954); Elchinger v. Elchinger, 181 So.2d 297 (La. App. 4 Cir. 1965).”

Also, see Odum v. Odum, 273 So.2d 576 (La.App. 1 Cir. 1973), wherein credit was denied a husband for payments made to dentists, doctors and merchants in behalf of his children.

There being no evidence to establish that the gifts to the children and the payments to others on their behalf were made at the request of the appellant or that she waived her rights to receive these payments, the appellee is not entitled to credit for such amounts.

In addition to the total arrearage in child support, the appellant is entitled to recover legal interest on each past due installment of child support from the date the installment was due until paid. Miller v. Miller, 321 So.2d 318, 321 (La.1975).

Since no reasonable explanation was given as to why the appellee was in arrears (even under the provisions of the invalid October 29, 1971, judgment) when appellant’s motion was filed, the appellant is also entitled to a reasonable attorney’s fee under LSA-R.S. 9:305. We will fix the fee at $900.00.

For these reasons, the judgment of the trial judge is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of appellant-plaintiff-in-rule, Wanda L. Courville Thompson, and against appellee-defendant-in-rule, Joseph D. Thompson, in the sum of $4,564.73 for unpaid child support as of March 15, 1978, together with legal interest on each delinquent installment from the date it became due until paid, and for her attorney’s fee of $900.00. All costs of court, including this appeal, are "assessed to the defendant-in-rule.

REVERSED AND RENDERED.

ON REHEARING

WATSON, Judge.

A rehearing was granted in this matter in order to consider an exception of prescription filed with the application for rehearing. The prescription urged is that three years, “ . . . for arrearages of . alimony” under LSA-C.C. art. 3538.

While there is some jurisprudential authority against allowing an exception to be filed on application for rehearing [See e. g. Braswell v. Heartwell, 234 So.2d 197 (La.App. 2 Cir. 1970), writs denied, 236 So.2d 497, 498; and Collette v. Olivier, 309 So.2d 894 (La.App. 3 Cir. 1975), writ denied, 313 So.2d 827] we see no valid reason why the plea of prescription should not be allowed in this instance.

Prescription is clearly applicable. It would be pointless to refuse to allow the exception’s filing and to require the exceptor to seek writs from the Supreme Court. In our discretion, therefore, we will permit the exception of prescription to be filed. Gulotta v. Cutshaw, 283 So.2d 482 (La.1973).

Since the exception is well taken, our original opinion in these proceedings must be modified to eliminate from the judgment any unpaid child support which was due more than three years prior to the filing of the rule to collect the arrearage. The rule was filed on February 15, 1978, and since the payment date is the first of the month, only amounts due and payable since March 1, 1975 are subject to being made executory. Under the judgment of the trial court the defendant-in-rule was ordered to pay a total of $6,600 (36 months at $185). He has paid, according to Exhibit A (TR. 22 and 23) and stipulations between the parties, the sum of $3,970. Therefore, the unpaid child support as of February 15, 1978 is $2,700.

We do not alter our original decree concerning attorney’s fees.

The original decree is modified and amended, as follows:

It is ORDERED, ADJUDGED and DECREED that there be judgment in favor of Wanda L. Courville Thompson and against Joseph D. Thompson in the sum of $2,700 for unpaid child support as of February 15, 1978, together with legal interest on each delinquent amount from the due date until paid and for her attorney’s fee of $900.

All costs, including appeal, are assessed to Joseph D. Thompson.

ORIGINAL DECREE AMENDED AND, AS AMENDED, RENDERED.

SWIFT, J., dissents and assigns written reasons.

SWIFT, Judge,

dissenting.

I respectfully disagree with the majority’s decision to consider the exception of prescription filed herein by the appellee because I am convinced that to do so is contrary to Article 2168 of the Louisiana Code of Civil Procedure and the settled jurisprudence of this state.

Article 2168, of course, permits an appellate court to consider such an exception even though filed for the first time in that court, “ . , . if pleaded prior to a submission of the ease for a decision, and if proof of the ground of the exception appears of record."

It has been consistently held (and at least twice before by this court) that an exception of prescription filed in a court of appeal after a case has been argued orally and submitted for a decision will not be considered because under this article it was filed too late. Collette v. Olivier, 809 So.2d 894 (La.App. 8 Cir. 1976), writ denied 813 So.2d 827 (La.1975); Washington v. St. Charles Parish School Board, 274 So.2d 909 (La.App. 4 Cir. 1973), reversed on other grounds 288 So.2d 321 (La.1974); Jones v. Wright, 258 So.2d 195 (La.App. 4 Cir. 1972), writ denied 261 La. 530, 260 So.2d 317 (1972); Braswell v. Heartwell, 234 So.2d 197 (La.App. 2 Cir. 1970), on rehearing, writs refused 256 La. 361, 363, 236 So.2d 497, 498 (1970); Tarver v. Columbia Gulf Transmission Company, 205 So.2d 764 (La.App. 3 Cir. 1967), writ denied 251 La. 1044, 208 So.2d 322 (1968); Steib v. Joseph Rathborne Land Co., 163 So.2d 429 (La.App. 4 Cir. 1964), writ denied 246 La. 376, 164 So.2d 361 (1964); Merchants Adjustment Bureau, Inc. v. Malta, 102 So.2d 781 (La.App. 2 Cir. 1958).

Despite this jurisprudence interpreting Article 2163, without expressly overruling or distinguishing the two previous decisions of this court or giving any particular reason to depart from the well established rule, the majority has decided on rehearing as a matter of discretion to consider and give effect to an exception of prescription that was filed after our original decision was rendered.,

Gulotta v. Cutshaw, 283 So.2d 482 (La.1973), which was cited by the majority as authority for its action, may have held that our supreme court can exercise its discretion in such a situation. But I do not think so as it appears to me the exception of prescription was filed in that court before the case was submitted for its original decision. Be that as it may, I do not find any authority for a court of appeal to exercise such discretion.

I am unable to understand how a panel of this court can render a decision that is clearly contradictory to a prior decision of the court without overruling same. From all indications, with its other work, the Louisiana Supreme Court has enough to do resolving conflicts between decisions of the four courts of appeal without having to do likewise in regard to conflicts in cases of the same court. I submit that in order to promote understanding and stability of law, as well as efficiency in the administration of justice, conflicts between panels or conflicts with prior decisions of the same court should be resolved by that court of appeal, if necessary en banc. However, as there is no applicable constitutional provision or court rule it appears that the conflict between the majority’s decision in this case and the prior jurisprudence of this court and the other courts of appeal can only be resolved by our supreme court through the exercise of its general supervisory jurisdiction.

      . The judgment that is now in effect in this case and will remain so until modified in an appropriate proceeding is dated December 3, 1970, and orders child support payments in the sum of $185.00 per month.

      . This applies the $225 paid after the motion was filed to support due prior to February 15, 1978.


author: STOKER, Judge.

text:
    LOUISIANA LIVESTOCK SANITARY BOARD, Plaintiff-Appellant, v. Jessie JOHNSON, Defendant-Appellee.
    No. 6905.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Writ Granted June 25, 1979.
    See also, 335 So.2d 784.

      Burgess E. McCranie, Jr., Metairie, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before WATSON, SWIFT and STOKER, JJ.
   STOKER, Judge.

This appeal is an episode in a continuing effort by plaintiff, Louisiana Livestock Sanitary Board, to require plaintiff cattleman to comply with LSA-R.S. 3:2221 et seq. The statutes involved have as their object the detection and eradication of certain diseases found in cattle. This case has been on appeal before this court on three prior occasions and certiorari has been denied twice by the Louisiana Supreme Court. The following two issues are posed by the present appeal:

1. Was the trial judge correct in dismissing plaintiff’s petition asking for the imposition of the penalties provided for under LSA-R.S. 3:2232 on the grounds that such penalties can only be imposed pursuant to a criminal prosecution?
2. Assuming the trial judge was correct in his reasoning regards LSA-R.S. 3:2232, was he correct in dismissing plaintiff’s rule entirely?

CASE HISTORY

This case originated as a suit for a mandatory injunction brought by the Louisiana Livestock Sanitary Board against Jessie Johnson, a cattle owner who resides in Evangeline Parish. The relief sought by the Board was an injunction ordering the defendant to pen and restrain his cattle for testing for brucellosis disease pursuant to LSA-R.S. 3:2221. The plaintiff filed a motion for summary judgment. The trial court granted this motion and issued a mandatory injunction in accordance with plaintiff’s prayer. The defendant appealed and we reversed and remanded at 299 So.2d 378 (La.App. 3rd Cir. 1974) finding that there was a genuine issue of material fact.

After the remand, the trial judge denied plaintiff the injunction which it sought on the grounds that the infected bull had been isolated from the remainder of the herd for a period of eight months. We reversed that judgment holding that while the evidence did support the trial judge’s factual findings, this did not prevent an application of R.S. 3:2221 requiring a cattle owner to present and restrain his cattle for testing. This case was “remanded to the district court for the issuance of a mandatory injunction ordering the defendant, Jessie Johnson to pen and restrain his herd of cattle located at his Point Blue Farm in Evangeline Parish, for the purpose of bru-cellosis testing and identifying as provided by the statute, LSA-R.S. 3:2221, on a date and time to be fixed by the district court, as provided by law and the views expressed herein.”

After the second remand, the plaintiff filed a new petition for a mandatory injunction in accordance with the judgment on appeal and the trial court issued an injunction in conformance therewith. Defendant then appealed from the judgment granting the injunction contending that it would be impossible for him to comply, since he did not know to which “herd of cattle” the injunction referred. In an unpublished opinion, we affirmed the decision of the district court, holding that “herd of cattle” referred to all cattle on the defendant’s Point Blue Farm.

SUMMARY OF PRESENT ISSUES

Hence, at that point, the case would seem to have been concluded. However, apparently the Louisiana Livestock Sanitary Board feels that the defendant has failed to comply with the injunction because it has since filed a “Petition For Contempt And Penalties”. (This petition was filed May 11, 1978, Tr. 101 et seq.) In this petition, plaintiff alleges that when defendant submitted his cattle to testing for brucellosis, some of the cattle were found to be infected. Plaintiff further alleges that defendant then refused to present and restrain his cattle for identification and branding pursuant to LSA-R.S. 3:2226.

The prayer to plaintiff’s petition reads as follows:

WHEREFORE, Petitioner prays that the Defendant, Jessie Johnson, be ordered to show, at a date and time to be fixed by this Honorable Court, why he should not be held in contempt of this Court’s order dated March 13, 1978; why he should not have his cattle reacting to the Brucellosis test on March 23, 1978 identified and branded by an authorized agent of the Louisiana Livestock Sanitary Board as required by LSA-R.S. 3:2226; and why he should not be penalized in accordance with the provisions of LSA-R.S. 3:2232.

From this prayer, it can be seen that the plaintiff is seeking three forms of relief in this case which are:

1. Imposition of penalties against the plaintiff pursuant to LSA-R.S. 3:2232;
2. An order directing plaintiff to have his infected cattle branded and inspected;
3. A finding that plaintiff was in contempt of court.

Defendant filed numerous and varied exceptions and motions attempting to have plaintiff’s rule for contempt and penalties dismissed. The trial judge, however, did not rule on these exceptions but on July 13, 1978, (Tr. 116) ex propvio motu dismissed the rule giving written reasons. (Tr. 116— 119)

PENALTIES UNDER LSA-R.S. 3:2232

We adopt the reasoning of the trial judge insofar as it dismisses plaintiff’s attempt to impose the penalties which are provided for in LSA-R.S. 3:2232. In this regard we quote with approval the following from the trial judge’s written reasons for judgment:

While considering the exceptions and motions, the court read and reviewed the findings of many cases touching on the matters raised by them, and one case in particular caught the court’s attention. This is Wall v. Wall [La.App.], 225 So.2d 47, Appeal after remand, 230 So.2d 420, where the court of appeal, First Circuit, with Judge Sartain as organ of the court, states that the proceedings for contempt is by its very nature quasi-criminal.
It should be observed that the penalties to which the defendant in this case could be subjected to under LSA-R.S. 3:2232, if found guilty of constructive contempt, could be a fine of up to $1,000.00 and imprisonment of up to one year, or both.
The Legislative history of LSA-R.S. 3:2232 is instructive and interesting.
Act No. 261 of 1938, Section 13, declares the violation of the statute to be a misdemeanor and prescribes penalties, and so does the Amendment of that statute of 1944, by Act No. 104, Section 6, which increased the penalty to a fine of not more than $500.00, and imprisonment of not more than 6 months, or both.
The present statute, LSA-R.S. 3:2232, amended by Acts 1954, No. 118, Section 4, sets forth the penalty for violation of the statute at a fine of not less than fifty dollars nor more than one thousand dollars, or in default thereof, imprisonment for not less than 30 days nor more than one year, or both. And while this particular statute does not declare it to be a misdemeanor, it is nonetheless one by its very words and terms. (Emphasis supplied)
The Court is convinced that in view of the rulings of the Supreme Court of Louisiana, in Louisiana State Board of Medical Examiners v. Bates, La. [258 La.1049], 249 So.2d 127, and the United States Supreme Court in Bloom v. Illinois (1968), 391 U.S. 194, 20 L.Ed.2d 522, 88 Sup.Ct. 1477; and in Duncan v. Louisiana (1968), 391 U.S. 145, 20 L.Ed.2d 491, 88 Sup.Ct. 1944, that the penalties which may be imposed upon the defendant if found guilty entitles him to a trial by jury, xxx
However, under LSA. Const. 1974, Art. 1, Section, 17, and Article 782 of the Louisiana Code of Criminal Procedure, the defendant is clearly entitled to be tried by a jury of six persons in this contempt proceeding.

Therefore, since the possible penalty upon default of payment of the fine provided for LSA-R.S. 3:2232 is one year imprisonment, a person accused of violating its provisions is entitled to a trial by jury. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127 (1971). Allowing the plaintiff to proceed through a civil proceeding tried before a judge would be a denial of defendant’s Sixth Amendment right to a jury trial. Hence, the trial judge correctly disposed of the part of plaintiff’s petition asking for the imposition of penalties under LSA-R.S. 3:2232.

OTHER RELIEF SOUGHT

Although the trial judge dismissed plaintiff’s “Petition For Contempt and Penalties”, his reasons for dismissing the case only address the issue discussed above. While plaintiff does not seriously dispute the correctness of the trial court’s reasoning as it relates to dismissing that portion of its civil action seeking the imposition of the penalties provided for in LSA-R.S. 3:2232, it does argue that the trial court erred in dismissing its entire rule rather than merely dismissing the part which asked for the imposition of penalties under LSA-R.S. 3:2232. As noted earlier, the other relief sought by the plaintiff is two-fold: (1) a finding that the defendant was in contempt of the court order mandating him to allow his cattle to be tested and (2) an order directing the defendant to cooperate in presenting and restraining his cattle to be branded and identified in accordance with LSA-R.S. 3:2226.

RULE FOR CIVIL CONTEMPT

Having disposed of plaintiff’s demand that the penalties provided for in LSA-R.S. 3:2232 be assessed against the defendant, we now consider whether the lower court erred in not trying the issue of whether the defendant was in contempt of a court order. As will be noted below, this contempt proceeding is entirely separate from the question of the penal provisions of LSA-R.S. 3:2232. Article 224 of the Louisiana Code of Civil Procedure reads in pertinent part as follows:

A constructive contempt of court is any contempt other than a direct one.
Any of the following acts constitutes a constructive contempt of court:
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;

The procedure for punishing a constructive contempt of court is spelled out in article 225 of the Louisiana Code of Civil Procedure which states:

Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt, and punished accordingly. The rule to show cause may issue on the court’s own motion, or on motion of a party to the action or proceeding, and shall state the facts alleged to constitute the contempt. A certified copy of the motion, and of the rule to show cause, shall be served upon the person charged with contempt in the same manner as a subpoena, at least forty-eight hours before the time assigned for the trial of the rule.
If the person charged with contempt is found guilty, the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed.

Applying the statutes quoted above to the present case, it can be seen that plaintiff’s petition alleges a constructive contempt of court on the part of the defendant in that he failed to obey a court order. LSA-C.C.P. Art. 224. Plaintiff is entitled to proceed by a rule to show cause inasmuch as the matter involves an alleged constructive contempt. LSA-C.C.P. Art. 225. The trial court therefore erred in dismissing plaintiff’s rule for contempt. Hence, it will be necessary to remand the case for trial in order to determine if the defendant was in constructive contempt of court. See the discussion under head notes 1 and 2 in Pettus v. Atchafalaya Wildlife Protective Society, 351 So.2d 790 (La.App. 1st Cir. 1977).

In remanding this case for trial of the contempt we express no opinion on the merits of the rule or the merits of any pending defensive motions or exceptions filed by defendant which may affect it. As a matter of clarification it should be noted that the penalty provision of LSA-R.S. 3:2232 makes it a penal statute. While the district court in this case has criminal jurisdiction, and could entertain a prosecution under the statute, we have no criminal jurisdiction. Therefore, we would have no jurisdiction to hear an appeal from a prosecution conducted under the statute. Although we have affirmed the trial court’s action dismissing the civil suit for penalties under the statute, it is appropriate for us to do so because, as a criminal matter, it could not be entertained on the civil side of the district court itself.

As contrasted with a prosecution under LSA-R.S. 3:2232, a civil proceeding for constructive contempt in a civil court is authorized by the Louisiana Code of Civil Procedure in Article 226 cited and quoted above. Punishment is authorized in Article 227 of the Louisiana Code of Civil Procedure; however, that article provides that persons adjudged guilty of contempt shall be punished as provided by LSA-R.S. 13:4611. This statute was amended in 1972 to reduce the penalty for contempt committed through disobeying or resisting a lawful restraining order, or preliminary or permanent injunction to a fine of not more than $500.00, or imprisonment for not more than six months, or both. According to the official reporter Comment this reduction was made in order that the penalty (previously up to $1,000.00, or twelve months, or both) not be within the serious offense classification of Baldwin v. New York, supra, and thus eliminate the necessity for a jury trial.

Despite the amendment referred to we have considered whether in this context the contempt in question can be called a purely civil matter. In a case involving very similar facts and issues our Supreme Court held, before the amendment of LSA-R.S. 13:4611, that the right to a jury trial made the contempt proceeding criminal contempt for all relevant purposes. Louisiana State Board of Medical Examiners v. Bates, supra. There the Supreme Court reversed the trial court which had held a party guilty of contempt in violating an injunction prohibiting him from practicing medicine in violation of a statute in a civil suit brought by the plaintiff Board. The Supreme Court held that the defendant was entitled to a jury trial as provided by Article 782 of the Louisiana Code of Criminal Procedure. In remanding the case to the trial court to be proceeded with in keeping with court’s holding, the Supreme Court obviously meant that the defendant must be tried on the criminal side of the trial court.

We now must decide the question of whether the reduction of the maximum penalty provided by LSA-R.S. 13:4611(2) so as to reduce the penalty below the “serious offense” limit has avoided or circumvented the holding of the Bates case that a contempt proceeding under the statutes is a criminal contempt for all relevant purposes. Notwithstanding the broad statements of the Louisiana Supreme Court in Bates concerning the criminal nature of contempt, we are of the opinion that Bates requires a criminal proceeding only in situations where the defendant would be constitutionally entitled to a jury trial. Under LSA-R.S. 13:4611(2) as amended, no defendant punishable for contempt thereunder would be entitled to a jury trial. Article 779, Sub-paragraph B, Louisiana Code of Criminal Procedure. Therefore, we do not regard Bates as limiting the district courts of this state with regard to civil jurisdiction so as to prohibit them from trying matters of civil contempt. Accordingly, as noted above, the rule for contempt should be heard by the trial court upon remand as a non-jury civil matter.

ORDER DIRECTING THE DEFENDANT TO HAVE HIS CATTLE IDENTIFIED AND BRANDED

The next type of relief sought by the plaintiff in his “Petition For Contempt And Penalties” is an order directing the defendant to “have his cattle reacting to the brucellosis test on March 23, 1978, identified and branded by an authorized agent of the Louisiana Livestock and Sanitary Board”. Plaintiff’s prayer for such an order is in actuality a request for the issuance of a mandatory injunction. In such a case, the trial court has a duty to recognize the true nature of the pleading. LSA-C.C.P. Arts. 854 and 862; Fremin-Smith Serv., Inc. v. St. Charles Parish W. D. No. 1, 300 So.2d 514 (La.App. 4th Cir. 1974). In this case therefore, the trial court should have treated plaintiff’s prayer for this particular order as a request for the issuance of a mandatory injunction.

The plaintiff attempts to proceed in his quest for a mandatory injunction through a rule to show cause. However, a suit for mandatory injunction is in the nature of an ordinary proceeding. LSA-C. C.P. Arts. 3601-3603; Fremin-Smith Serv., Inc. v. St. Charles Parish W. D. No. 1, supra. While it is true that the question of the issuance of a temporary restraining order or a preliminary injunction may be tried by summary proceeding, this must be done ancillary to a suit for a permanent injunction. LSA-C.C.P. Art. 3601. Since the defendant timely filed a dilatory exception of unauthorized use of summary process to plaintiff’s “Petition For Contempt And Penalties”, he did not waive his right to object to the plaintiff proceeding by summary process. Hence, insofar as it relates to plaintiff’s prayer for this phase of the relief sought, the defendant’s exception of unauthorized use of summary process will be sustained. Since this is a defect which may be cured by amendment, LSA-C.C.P. Art. 933, the plaintiff will be given leave to amend its pleadings in order to proceed via ordinaria for a mandatory injunction. Therefore, for the reasons stated above, we will affirm the trial court’s dismissal of this phase of plaintiff’s petition and remand the case to allow plaintiff to amend his petition, within a time to be fixed by the trial court, to conform with the views expressed herein.

Out of caution, we note that the exception of unauthorized use of summary process is sustained only insofar as it dismisses plaintiff’s demand for an order directing the defendant to have his infected cattle identified and branded.

DEFENDANT’S EXCEPTIONS AND OTHER DEFENSES

As noted earlier, the defendant filed several exceptions and motions in defense to the “Petition For Contempt And Penalties”. Defendant argues that if the trial court is found to have erred in dismissing plaintiff’s petition on the grounds assigned by it, then we should sustain one or all of his procedural devices and affirm the dismissal of plaintiff’s entire case on such grounds. Since we have sustained the trial court with reference to the application of LSA-R.S. 3:2232, our decision here leaves portions of the action still before the trial court. Therefore, some of the defenses urged by way of motion or exception may apply to the remaining issues of the case.

However, we are of the opinion that the district court would be in a better position to decide these issues. Certain of the exceptions filed by the defendant may require testimony and in that respect must be heard by the trial court. It is also possible that some of the exceptions could best be decided by having them referred to the merits of the case, which would also necessitate a remand. Hence, rather than undertake a piecemeal determination of the motions and exceptions filed by the defendant, the entire case will be remanded for a trial of the rule for contempt as well as a decision on the defendant’s motions and exceptions.

For the foregoing reasons, the judgment of the trial court is affirmed insofar as it dismisses plaintiff’s rule seeking the imposition upon the defendant of the penalties provided by LSA-R.S. 3:2232. The judgment of the trial court is affirmed and amended insofar as it dismisses plaintiff’s demand for an order directing defendant to cooperate in presenting and restraining his cattle to be branded and identified; however, the judgment is affirmed on the ground that this relief is sought through a rule to show cause in an instance where summary process is unauthorized; the judgment is amended to grant plaintiff leave to amend its pleadings, within a period to be fixed by the trial court, for the purpose of demanding a mandatory injunction in proper form and in conformity with the views herein expressed. The judgment of the district court dismissing plaintiff’s rule for contempt is reversed and remanded for a trial consistent with the views expressed herein. Costs of this appeal are assessed against defendant-appellee, Jessie Johnson.

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

MOTION TO DISMISS

Just prior to this case being submitted, both parties having waived oral argument, the defendant-appellee filed a Motion to Dismiss the appeal of the plaintiff-appellant on the grounds that the plaintiff-appellant had abandoned its appeal by failing to file its brief timely under our new internal rule, which provides that, where all parties have waived their rights to oral argument by failure to file briefs timely, the case will be docketed for submission without oral argument on the 60th day after the filing of the transcript of appeal in this court. If the appellant’s brief is not filed within these 60 days, the court shall, ex proprio motu, consider the appeal abandoned.

Although the plaintiff-appellant’s brief was not filed timely under this court’s new internal rule, this rule did not become effective except in those appeals that were filed on or after December 20, 1978, as this was the date on which the new rule was published and distributed. The appeal in this case was filed on October 20, 1978. Therefore, plaintiff had, under the prior rules of this court, until the day set for the case to be submitted in which to file a brief. This case was set for submission on February 13, 1979, and the plaintiff-appellant’s brief was filed on February 12, 1979. The Motion to Dismiss is therefore denied.

MOTION DENIED.

        .Louisiana Livestock Board v. Johnson, 335 So.2d 784 (La.App. 3rd Cir. 1976), writ denied 339 So.2d 14 (1976).

      . Quotation found at 335 So.2d 787.

      . Docket No. 6229 of this court, rendered December 20, 1977.

      . The applicable provision would appear to be Article 779 of the Louisiana Code of Criminal Procedure, which reads as follows:
      Art. 779. Trial of misdemeanors
      A. A defendant charged with a misdemean- or in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, five of whom must concur to render a verdict.
      B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

      . Section 35, Article VII, Louisiana Constitution of 1921 and Section 15, Article 5, Louisiana Constitution of 1974.

      . See footnote 4, supra.

      . With respect to that part of the prayer of plaintiffs May 11, 1978, “Petition For Contempt And Penalties” which requests an order directing the defendant to have his cattle identified and branded, it should be noted that the plaintiff subsequently filed a “Petition For Mandatory Injunction” seeking similar relief. The trial judge sustained an exception of lis pendens to the “Petition For Mandatory Injunction” on the grounds that this suit for “Contempt And Penalties” was still pending. The filing of this “Petition For Mandatory Injunction” and the Judgment sustaining the exception of lis pendens took place subsequent to the appeal being taken in this case, but they are contained in the record which is now before us. However, since they were filed subsequent to the appeal, they will not be considered in this opinion.


author: SWIFT, Judge. STOKER, Judge,

text:
    Quincy L. BOYETTE, Plaintiff-Appellant, v. UNDERWRITERS AT LLOYD’S LONDON et al., Defendant-Appellee.
    No. 6938.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Long & Peters, Jimmie C. Peters, Jena, for plaintiff-appellant.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee.
    Before WÁTSON, SWIFT and STOKER, JJ.
   SWIFT, Judge.

The plaintiff has appealed from a judgment sustaining the defendant’s motion for summary judgment and a peremptory exception of no right of action. We affirm.

The suit was brought by Quincy L. Boy-ette for benefits under a fire insurance policy covering a frame dwelling in Tullos, Louisiana, that was destroyed by fire on July 23, 1977. The defense was based on the following clause in the policy:

“Vacancy and/or Unoccupancy Clause: With the exception of a schedule of buildings having more than ten (10) items it is warranted that the premises described in this policy or in any form or endorsement attached thereto is OCCUPIED. Vacancy or unoccupancy of said premises renders this policy null and void (this warranty supersedes any language to the contrary contained herein).”

Such a clause is required in all fire insurance policies issued in this state and is governed by the following provision of LSA-R.S. 22:691 wherein the standard fire policy is set forth:

“Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring:
“(b) While a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond period of sixty consecutive days;”

The undisputed facts disclosed by the depositions filed in the record are that the plaintiff-owner had rented the house to his daughter and son-in-law, but they moved out from two to three months before the fire. No one lived on the premises after they left. The plaintiff subsequently agreed to rent the house to his oldest son for his use as a family dwelling. On the day before the fire the son mowed the grass and he and his wife cleaned the house to some extent. They also moved therein some items of furniture and a few of their clothes. The utilities were not turned on. The son went to work offshore that evening or the next day and his wife and two children continued to reside with her mother. They intended to complete the move on his return. The house was consumed by fire before any further steps were taken in this connection. No other persons occupied the house in any manner during such period.

The plaintiff contends that the trial judge erred in finding that the insured premises were unoccupied for more than sixty days prior to the loss in view of the preparatory steps taken by his son and wife and their intention to actually move in on his return from offshore employment, particularly because the above quoted policy clause is ambiguous and must be strictly construed against the insurer. We do not agree.

As pointed out above, this clause is in the insurance policy involved in this case because the law requires it. Consequently, the rule of strict construction of the policy against the insurer has no application. P. O. P. Construction Company v. State Farm Fire and Casualty Company, 328 So.2d 105 (La.1976); Buccola v. National Fire Insurance Company of Hartford, Conn., 18 La. App. 353, 137 So. 346 (Orl.1931); Romero v. Maryland Casualty Company, 54 So.2d 645 (La.App.Orl.1951); Kugler v. Philadelphia Fire and Marine Insurance Co., D.C., 105 F.Supp. 158, aff. 204 F.2d 297 (5 Cir. 1953), cert. denied 346 U.S. 873, 74 S.Ct. 122, 98 L.Ed. 381.

Nor do we think the policy clause and statutory provisions are ambiguous. We agree with the trial judge that:

“In the policy in question, ‘vacancy’ means empty, that is empty of goods and property of the insured while ‘unoccupied’ means the absence of or lack of regular habitation by humans.”

See Appleman Insurance Law and Practice, 4A § 2833.

In Terwilliger v. Union Fire, Accident and General Insurance Company, 185 So. 43 (La.App.Orl.1938), although the terms “vacant” and “unoccupied” were defined in this manner in the policy, the court made the following comment as to the meaning of “unoccupied”:

“The condition of the contract herein-above set forth is free from ambiguity and clearly defines the term “unoccupied” as meaning “a dwelling that is entirely furnished, but with personal habitants temporarily absent.” The courts of this country have on numerous occasions construed similar occupancy clauses in fire insurance contracts and it has been universally held that a dwelling is not in a state of occupancy unless there is in it the presence of human beings using the same as their customary place of abode.” [Authorities omitted.]

We therefore conclude that the policy was violated by reason of the premises being unoccupied for more than sixty (60) consecutive days and the trial judge correctly sustained the motion for summary judgment. In view of this conclusion it is unnecessary to consider the trial court’s ruling on the exception of no right of action.

We realize that our decision may be considered as contrary to Burrell v. Seguros American Banamex, S. A., 316 So.2d 177 (La.App. 4 Cir. 1975). However, we must respectfully disagree with the position expressed therein that such a statutory insurance clause must be construed in favor of the insured. Also in that case the facts were somewhat different from those with which we are presented.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.

STOKER, J., dissents and assigns reasons.

STOKER, Judge,

dissenting.

With respect I dissent from the majority opinion which grants defendant’s motion for summary judgment and exception of no cause of action. Factually, I am of the opinion that the present case is close to Burrell v. Seguros American Banamex, S. A., 316 So.2d 177 (La.App. 4th Cir. 1975), writ refused 320 So.2d 561 (La.1975). Defendants concede that plaintiff’s son and family “had begun to move back into the insured house” at the time that it burned but rely on the fact that the move had not been completed, and prior to the beginning of the move the house had not been lived in for sixty days. The deposition testimony of the son was that he had not moved all of his effects but had moved into the house a refrigerator, a stove, a couch and chairs, a stereo and TV and his bed. Other items, including some clothes, were also moved into the house. It is apparently a fact that considerable other effects had not been moved.

The Burrell case holds that it is not essential for anyone to sleep in a house in order that it be occupied in the context of fire insurance clauses such as we are involved with here.

In addition to the above, even if it may technically be determined that the premises were vacant or unoccupied as contemplated by the policy and LSA-R.S. 22:691, there has been no compliance with the following section of Title 22, LSA-R.S. 22:692. Under that section, a fire insurer may not void a policy for certain breaches “unless such breach (1) shall exist at the time of the loss, and be either such a breach as would increase either the moral or physical hazard under the policy.” In Terwilliger v. Union Fire, Accident and General Insurance Company, 185 So. 43 (La.App.Orl.1938), relied upon by the majority, the court did consider this statute and made a finding that the risk or hazard had been increased. The Terwilliger case also approved an earlier holding by it to the effect that “ ‘the insurer must show that a breach of the warranty or condition in this respect did in fact increase the moral (or physical) hazard.’ ”

It might well be that a trial of this case would have shown that the activities of plaintiff son and daughter-in-law in cleaning the yard and moving certain furniture and personal effects into plaintiff’s house actually decreased the risk of hazards covered by the policy.

For the foregoing reasons I respectfully dissent.

      . The plaintiff has not questioned that such period was in excess of sixty consecutive days. It is therefore obvious that there is no dispute in this regard.


author: SAMUEL, Judge.

text:
    Denise Lynn Landeche AIRHART v. Joseph John AIRHART.
    No. 9660.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 1979.

      Jacob L. Karno, Metairie, for plaintiff-ap-pellee.
    Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, J¿.
   SAMUEL, Judge.

Plaintiff wife appeals seeking an increase in pendente lite alimony and child support awards for herself and her four minor children. The awards appealed from, which followed a hearing on a rule filed in connection with her petition for separation from bed and board, are in the weekly sums of $40 for alimony and $80 for child support, a total of $120 per week. In addition, plaintiff also has possession and use of the family home.

The parties have been married for some 20 years. The husband had been employed as a technician by a local dental laboratory, beginning with an annual salary of $12,000 which was ultimately increased to $17,000. He earned the latter amount until two yeas prior to the separation, at which time he went into business for himself. The business, involving fabricating crowns and bridges for individual dentists, was a family venture, conducted from the couples’ home. After he trained his wife and children to participate, all worked hard to make the venture a success. The husband worked 14 to 16 hours daily, 7 days a week. Since the dentures were made in the home with only family members involved, the expense of outside rental facilities and outside employees was eliminated. As a result, the business prospered, earning approximate net profits of $32,000 in each of the two years prior to the separation. The business was discontinued after the separation and the husband obtained work as a salesman for a company owned by his father, selling medical equipment to hospitals and doctors, at a salary of $13,000 per year.

The wife listed her total needed monthly expenses for herself and the children at $1,837.50. She is not employed. The husband itemized his needed monthly expenses at $1,552.60. He now earns a gross of $250 per week and a net (after taxes) of $207.77 per week. We note the total amount awarded ($120) leaves the husband with only $87.77 of his net weekly pay for his own weekly needs.

In this court appellant contends the trial judge committed error in these respects: (1) in failing to follow Louisiana jurisprudence which, treats the husband’s ability to earn income as one of his resources considered in fixing the amount of alimony and child support; (2) in failing to follow Louisiana jurisprudence which provides that if a husband voluntarily seeks employment which will substantially reduce the amount of alimony and child support he is able to pay, except in extraordinary circumstances, payments commensurate with the previous standard of living enjoyed will be allowed; and (3) in failing to follow Louisiana jurisprudence which provides that an award for alimony and child support is to be based on a husband’s gross income as opposed to his net income.

The first two contentions are so interrelated we treat them together. Appellant argues the defendant has the ability to earn approximately $32,000 per year by continuing the family business and that he should be condemned to pay alimony and child support in accordance with that figure. Expressing a willingness to resume the business relationship with her husband, she contends he is capable of earning that amount by continuing the family business and therefore the awards for alimony and child support should be based on an annual income of $32,000, the approximate net profits of that business during the two years it was conducted.

We note the family business earnings for the last two years were generated by all members of the family, and do not reflect earnings of the husband alone. The family earnings resulted from the efforts of the wife and children as well as the husband, all under the husband’s supervision. And it is clear that under the acrimonious circumstances surrounding the separation it is highly unlikely that the business relationship could be successfully reestablished. As pointed out by the husband, the wife would like him to return to the home for business purposes, but sleep elsewhere.

Under those same acrimonious circumstances it also is clear the husband did not voluntarily give up the business. While we do not consider the merits of the separation suit, the record before us shows the wife insisted the husband leave the home. After the separation he tried to get work at one of the local dental conglomerates, but was told they were cutting down. Also, considering the fact that the husband left his former employer to go into business for himself (obviously as a competitor) it is highly unlikely he would be rehired there. Nor does it appear, as appellant further argues, that the husband is being intentionally underpaid in his father’s business. The record is totally devoid of any evidence supporting that argument, and in fact, the evidence is to the contrary. The only evidence on the subject indicates defendant’s salary is the same as, or comparable to, the salaries paid other similarly situated employees in defendant’s father’s business.

Relative to appellant’s third contention, the trial court did base the awards on the amount of defendant’s salary after taxes and the two cases cited by appellant (Penney and Roberts) do hold that, under the circumstances present in those cases, awards for alimony pendente lite and child support should be based on the husband’s gross income. However, in the present case the record fails to disclose what exemptions were claimed, or would be claimed, by either the husband or by the wife. In any event, especially considering the small amount retained by defendant after payment of alimony and child support, the tax question could not make any appreciable difference in those awards.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . After judgment had been handed down in this case, the plaintiff wife filed another suit against the paternal grandfather for support of his grandchildren. That case, No. 9980 of our docket and also handed down this day, was consolidated in this court for argument.

      . Both expense estimates appear to be exaggerated.

      . Obviously, he cannot pay his alleged needed monthly expenses with that part of the salary he retains. He lives with relatives, etc.

      . Citing Civil Code Article 148; Bowsky v. Silverman, 184 La. 977, 168 So. 121; Lewis v. Lewis, La.App., 329 So.2d 778; and Viser v. Viser, La.App., 179 So.2d 672.

      .Citing Mosley v. Mosley, La.App., 348 So.2d 225; Baer v. Simon, La.App., 334 So.2d 796; and Koon v. Koon, La.App., 271 So.2d 893.

      .Citing Penney v. Penney, La.App., 357 So.2d 53 and Roberts v. Roberts, La.App., 145 So.2d 669.

      .See Liles v. Liles, 369 So.2d 479 (1979).


author: SAMUEL, Judge. SCHOTT, Judge,

text:
    Denise Lynn LANDECHE, Wife of Joseph John Airhart v. Joseph Jake AIRHART.
    No. 9980.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 1979.
    Rehearing Denied July 12, 1979.
    Jacob L. Karno, Metairie, for plaintiff-ap-pellee.
    Flanders & Flanders, Dudley D. Flanders, Kevin Robshaw, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Joseph Jake Airhart, the paternal grandparent of her four minor children, to recover child support over and above amounts for pen-dente lite alimony and child support ordered by another court to be paid her by her husband.

This appeal was consolidated for argument in this court with the appeal in the separation suit against the husband, in which the wife requested an increase in alimony and support payments from her husband. In that suit, the trial judge awarded alimony in the amount of $40 per week for the wife, and child support in the amount of $20 per week for each child, totaling $120 per week. In addition, the wife has the possession of the family home and its contents.

Following the judgment against her husband, the wife instituted the present action against the paternal grandfather, alleging they were in necessitous circumstances and entitled to support from their ascending relatives under Civil Code Article 229. She also alleges the defendant grandfather and her husband misrepresented her husband’s income, and therefore the grandfather should be required to pay supplemental support commensurate with the income the husband has the ability to earn. The husband is employed by the defendant herein, his father.

The defendant grandfather filed a third party demand against Dennis J. Landeche and Vivian Landeche, the maternal grandparents of the children, alleging that if he is cast in judgment for support, the maternal grandparents are likewise liable to support their grandchildren.

After trial, judgment was rendered in favor of plaintiff against the paternal grandfather in the amount of $80 per week and, also in favor of the plaintiff wife, against the maternal grandparents in the amount of $20 per week. Both the paternal grandfather and the plaintiff wife have appealed. He seeks reversal of the judgment condemning him to pay child support and she seeks an increase in the $80 per week he has been condemned to pay.

This action against the paternal grandparent is based on Civil Code Article 229 which provides:

“Children are bound to maintain their father and mother and other ascendants, who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.
They are also bound to render reciprocally all the services which their situation can require, if they should become insane.” LSA-C.C. Art. 229.

Pertinent hereto is Article 227 of the Civil Code which provides:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” LSA-C.C. Art. 227.

A reading of the two articles reveals that Article 229 is not as broad in scope as Article 227; Article 229 is based on “need”, while Article 227 is based on the broad duty of mothers and fathers to support, maintain, and educate their children. In Fellows v. Fellows, the court pointed out that under the provisions of Articles 227, 230, and 231, the obligation to support, maintain, and educate minor children is contracted by parents by the very act of marrying, and nourishment, lodging, support, and education are to be provided in proportion to the wants of those requiring aid and according to the circumstances of those who are obliged to pay'. The court stated that the application of these basic rules recognizes children are thus entitled by birth right to a life during their minority consistent with the father’s (and mother’s) station in life.

Our courts have recognized that the duty of a grandparent under Civil Code Article 229 extends only to needy descendants and encompasses only the basic needs of food, shelter and clothing. The paternal obligation in Article 227 primes the obligation of ascendants under Article 229; fathers and mothers bear the first and principal obligation of supporting, maintaining and educating their children and before a grandparent can be cast in judgment for support under Article 229, it must be shown that the grandchildren are in fact “in need”.

In this case the record shows plaintiffs husband receives a gross annual income of $13,000. Plaintiff is presently receiving $120 per week ($520 per month) in alimony and child support, together with sole and full use of the family home and its contents. While we cannot place a precise figure on the value of the use of the family home and contents, we note they are debt and rent free. Consequently, we conclude plaintiff is receiving from her husband, in either cash or use of property, the equivalent of considerably more than $520 per month.

We have reviewed with care the statements of need and expenses contained in the records of plaintiff’s suits against her husband and against the paternal grandparent of her children. In one proceeding she estimated her expenses at $1,716.78 per month and in the other she estimated these expenses at $1,837.50 per month. While her list of expenses are basically consistent, they nevertheless appear to be exaggerated. This is true even though one of plaintiffs children has an emotional problem calling for some psychiatric care which, according to the record, was being provided by the state.

In this regard we also note the plaintiff tends to minimize her own ability to contribute to the support of her children because of an epileptic condition. However, that condition does not seem sufficiently serious to prevent her from seeking gainful employment in order to so contribute. This conclusion is based, and substantiated in part, on plaintiff’s demonstrated ability to perform work in the business prior to the separation. Moreover, the doctrine of Ward v. Ward, has no application in this case. In Ward, the Supreme Court held that the earning capacity of an unemployed wife does not bar her from recovering alimony from her husband under Article 160 of the Louisiana Civil Code. However, under Civil Code Article 227 both the mother and the father have an obligation to support, maintain, and educate their children and, where able, both are required to seek and obtain employment for that purpose.

In our view, before a grandparent can be called upon to afford support to his grandchildren under Civil Code Article 229 a convincing showing must be made of: (1) “need” on the part of the grandchildren within the meaning and intent of that article; (2) ability of the grandparent to pay the support; (3) the fact that the requesting parent or parents of the children cannot obtain work, including reasonable extra work, which they are able to perform and which would either prevent the children from being in “need” or lessen the amount of that “need”.

Considering all the facts of this case, we conclude there has been no showing that the children are sufficiently in “need” so as to warrant a judgment against the grandfather under Civil Code Article 229.

For the reasons assigned, the judgment appealed from is reversed only insofar as it condemns the defendant, Joseph Jake Air-hart, to pay the sum of $80 per week to plaintiff, Denise Lynn Landeche Airhart, on behalf of his four minor grandchildren. Accordingly, plaintiff’s suit against Joseph Jake Airhart is dismissed.

REVERSED.

SCHOTT, Judge,

concurring specially.

I agree and have joined in the majority opinion in this case, but wish to express some additional views on the case.

Today Art. 229 seems to be anachronistic. At that point in time when its predecessor article was placed in the Code Napoleon there was surely a great deal more collegiality and familiarity between grandparents and grandchildren than there is today, just as family ties in general were stronger with much more intimate relationships existing among children, parents and grandparents. The latter’s obligation to provide some support was counter-balanced by some recognition of their authority, some respect for their opinions and some inclination to heed their advice.

It suffices to say that these attitudes and relationships have changed considerably. When children decide to get married and have their own children the parents, i. e., the grandparents-to-be, have little if anything to do with the decision. Even the sense of responsibility on the part of parents for their own children has been weakened in our society. Thus, it seems anomalous to saddle grandparents with the responsibility for their grandchildren in an age when the family as an institution is threatened and the notion of the grandfather as the family patriarch has been rejected.

Nonetheless, Art. 229 is a part of our law and must be enforced by our courts. However, I would apply it sparingly and only where the grandchildren are in dire need and parental responsibility has been exhausted. Plaintiff has not made such proof and on that basis alone I would reverse the judgment appealed from.

But what is perhaps more important in this case, the defendant grandfather was deprived of fundamental due process as a result of the procedural posture of the case in the trial court. The award to plaintiff of child support was based on a trial in Jefferson Parish in proceedings to which the grandfather was not a party. Four months later, as a defendant in these proceedings in Orleans Parish, he was faced with a ruling by the trial judge that the ability of the parents to support the children was irrelevant, viz:

“ . . . I concluded that [the judge in Jefferson Parish] found that that was as much as the father could afford. Now, on that basis my only job is to determine what need remains unsatisfied and can Mr. Airhart meet that need.”

In other words, defendant was bound by a prior determination in a case in which he was not a party. He was not afforded an opportunity , in an adversary proceeding to prove that plaintiff could work to meet the needs of the children or indeed that his own son, the father of the children, could take on additional work to support his children. Since defendant’s obligation is secondary to the obligation of the parents he should be afforded a trial adverse to both parents and a determination should be made that the parents are doing all they possibly can for the children before he, the grandfather, should be made to pay.

      . Airhart v. Airhart, La.App., 372 So.2d 595.

      . The maternal grandparents have not appealed from the judgment.

      .La.App., 267 So.2d 572.

      . See Tobin v. Tobin, La.App., 323 So.2d 896; Demarie v. Demarie, La.App., 295 So.2d 229.

      . We disagree with the statement to the contrary contained in Tobin v. Tobin, supra, note 4, at page 899. See Simon v. Simon, La.App., 127 So.2d 769, where the court held the duty of the mother to maintain her daughter under Article 229 does not prime the obligation of the daughter’s husband to maintain her as his wife under C.C. Art. 160.

      . We see no merit whatever in plaintiffs argument that her husband and his father conspired to conceal the husband’s income. That argument was answered in the separation suit cited in footnote 1, supra.

      . La., 339 So.2d 839.