author: BARHAM, Justice. SANDERS, Chief Justice CALOGERO, Justice.

text:
    EXCHANGE NATIONAL BANK OF CHICAGO et al. v. Frank SPALITTA et al.
    No. 55012.
    Supreme Court of Louisiana.
    March 31, 1975.
    On Rehearing Nov. 3, 1975.

      Leo S. Roos, Roos & Roos, New Orleans, for plaintiffs-applicants.
    Joseph P. Henican, III, Carl W. Cleveland, C. Ellis Henican, Jr., Henican, James & Cleveland, New Orleans, for defendants-respondents.
   BARHAM, Justice.

This suit was filed by Exchange National Bank in an attempt to collect money owed to it by Place Vendóme Corporation from the latter’s accommodation guaran-, tors, C. Ellis Henican, Philip E. James, and Frank Spalitta. Place Vendóme Corporation is a subsidiary of Southern Land Title Corporation, both of which are presently in bankruptcy proceedings under Chapter X of the Bankruptcy Act, the chapter providing for corporate reorganization. 11 U.S.C. § 501 et seq.

The three defendants signed a continuing guaranty in solido for all sums advanced to Place Vendóme Corporation by Exchange National Bank and National American Bank of New Orleans, up to $1,824,234.00. Following the execution of a collateral mortgage on several French Quarter properties owned by Place Ven-dóme, Exchange National Bank advanced several large sums of money to Place Ven-dóme for construction purposes.

In June, 1967, Place Vendóme and Southern Land Title Corporation invoked bankruptcy proceedings by a petition for corporate reorganization entitled In the Matter of Southern Land Title Corporation, Debtor, No. 67-135 on the docket of the United States District Court for the Eastern District of Louisiana. During the corporate reorganization proceedings, Exchange National Bank petitioned for a sale of the mortgaged properties. Pursuant to its authority under Chapter X, the court ordered the trustee to sell the properties at a public auction where Exchange National Bank purchased them, applying the price to the amount allegedly due it.

During the pendency of the reorganization proceedings, but before the sale of the property, Exchange National Bank filed this suit in state court on its collateral mortgage note. (National American Bank, an original plaintiff, dismissed its suit with prejudice.) Following the sale of the property, Exchange National Bank amended its petition in order to include the sale, seeking only the balance due on the note after the sale of the property. The defendants filed an exception of no cause of action on the ground that a deficiency judgment was barred by failure to comply with La.R.S. 13:4106, 4107 because the property was not sold under executory proceedings with notice of seizure and proper appraisal and because compliance with the Act was not alleged in the petition, plaintiffs responded that compliance was not necessary because the Louisiana Deficiency Judgment Act does not apply to sales ordered in corporate reorganization proceedings under Chapter X.

The trial court sustained the exception of no cause of action, holding that the bank had lost its right to a deficiency judgment against the guarantors by its failure to follow the requirements of La. R.S. 13:4106 et seq. The court of appeal affirmed. 295 So.2d 18 (La.App. 4th Cir. 1974). We granted certiorari to review that decision. 299 So.2d 360 (La.1974). We reverse the judgment of the court of appeal and set aside the ruling of the trial court sustaining the exception of no cause of action.

Although we are in agreement with the finding in the trial court that the requirements of the Deficiency Judgment Act were not complied with, it is our opinion that it is not necessary to address ourselves to that issue because of our threshold determination that the Louisiana Deficiency Judgment Act is not applicable to sales under Chapter X of the Bankruptcy Act.

From the record, it appears that Place Vendóme Corporation filed for voluntary reorganization under Chapter X on June 19, 1967, following the initiation of reorganization proceedings by its parent corporation, Southern Land Title Corporation. On June 21, 1967, the federal district court approved the petition and appointed a trustee. At this time, title to all Of the debtor’s property passed to the trustee under 11 U.S.C. § 586, retroactive to the date of the filing of the petition. See In Re Susquehanna Chemical Corp., 81 F.Supp. 1 (W.D.Pa.1948), aff’d, 174 F.2d 783 (3d Cir. 1949). Thus, Place Vendóme, by filing the petition, voluntarily divested itself of all property, title to which passed to the trustee who represents the general creditors and who was appointed with the approval of the federal district judge. 11 U. S.C. § 72.

If the proceeding had been one in straight bankruptcy, it would have been the duty of the trustee to liquidate the estate in a manner which would produce the greatest return for the general creditors. In straight bankruptcy, all sales must comply with 11 U.S.C. § 110(f), which requires the appointment of appraisers and a price not less than 75% of the appraised value. However, in corporate reorganization under Chapter X, the object is reorganization and recapitalization rather than liquidation, and in accordance therewith, the trustee is vested with the extraordinary power to sell or lease property in any manner which improves the strength of the debtor corporation and protects the creditors. This grant of authority is conferred by 11 U.S.C. § 516, which provides:

“Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers, and duties in this chapter conferred and imposed upon him and the court—
“ * * *
“(3) authorize a receiver or a trustee or a debtor in possession, upon such notice as the judge may prescribe and upon cause shown, to lease or sell any property of the debtor, whether real or personal, upon such terms and conditions as the judge may approve; * * *

The only limit upon this power is the sound discretion of the judge; 11 U.S.C. § 110(f) is specifically made inapplicable by the express wording of 11 U.S.C. § 502. See also Judge Augustus Hand’s statement in In Re Loewer’s Gambrinus Brewery Co., 141 F.2d 747, 750 (2d Cir. 1944):

“* * * 11 U.S.C.A. § 502, expressly provides that an appraisal shall not be necessary in a Chapter X proceeding unless an order shall be entered directing that bankruptcy be proceeded with pursuant to Chapters I to VII inclusive, 11 U.S.C.A. §§ 1-112. In other words, Section 102 exempts sales in Chapter X proceedings from the necessity of appraisal which is required in straight bankruptcy.”

The difference in requirements flows from the difference in objectives in straight bankruptcy as opposed to reorganization proceedings. These differences have been cogently explained in In re Danra Corporation, 400 F.2d 833, 836 (3d Cir. 1968), as follows:

“After a petition has been approved, the District Court may exercise its discretion in ordering the sale of all or of a portion of the assets of the debtor. There is no requirement that a plan for reorganization must be submitted, nor even that the sale be in aid of reorganization, or that it await a liquidation in straight bankruptcy. Furthermore, Section 102 of the Act (11 U.S.C.A. § 502) renders an appraisal of the assets in Chapter X proceedings unnecessary unless the Court has ordered the instigation of bankruptcy proceedings. [citations omitted].
“ * * * It must be noted that Section 116 authorizes such sales to be made within the sound discretion of the Court ‘upon cause shown’. The statute makes no reference to the necessity or an impending emergency. Furthermore, the weight of authority in the various circuits is that Section 116 sales are proper where there is justifiable cause present, and where the sale is in the best interest of the debtor and the majority of the creditors, [citations omitted].”

In addition to the discretionary power vested in the trial judge regarding sales of a debtor’s property under § 516, we note the well-established exclusive nature of the jurisdiction of the Bankruptcy Court over the debtor and its property under the provisions of 11 U.S.C. § 511:

“Where not inconsistent with the provisions of this chapter, the court in which a petition is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and its property, wherever located.”

The clause "wherever located” indicates the need, particularly in reorganization proceedings, for uniformity among the jurisdictions, as well as the need for exclusive jurisdiction in a single court, because of the fact that a bankrupt debtor corporation often owns property in several states. The essential purpose of the jurisdictional statute, as described in Collier on Bankruptcy, is:

“ * * * to render the authority and control of the reorganization tribunal paramount and all-embracing to the extent required to achieve the ends contemplated by Chapter X; and to exclude any interference by the acts of others or by proceedings in other courts where such activities or proceedings in other courts tend to hinder the progress of reorganization.” 6 Collier on Bankruptcy 424, ¶ 3.03 (14th ed. 1972). (Emphasis here and elsewhere supplied.)

There exists only one federal case resolving the issue of the applicability of the Deficiency Judgment Act to sales under Chapter X, i. e., Bowl-Opp, Inc. v. Larson, 334 F.Supp. 222 (E.D.La.1971). That was a diversity suit in which the federal district court judge was bound to apply Louisiana law to the situation before him. This issue being one of first impression in Louisiana courts in the instant case, the judge was constrained to apply what, in his opinion, Louisiana courts would find the law to be if given the same facts. The holding in Bowl-Opp was that the Louisiana Deficiency Judgment Act did apply to Chapter X sales, but that it had not been complied with since the property had been sold without appraisal. In the instant case, Louisiana courts are confronted with the issue for the first time, and, as we are not bound by the federal judge’s interpretation of our law, we hold that the Act does not apply to Chapter X sales. It is our opinion that J. Ray McDermott and Co. v. Vessel Morning Star, 5 Cir., 431 F.2d 714, rehearing en banc, 457 F.2d 815 (5th Cir. 1972), is the more preferable federal interpretation of the applicability of the Louisiana Deficiency Judgment Act to federal statutes which have been enacted in the interest of uniformity.

McDermott involved fishing vessels which had been foreclosed upon without appraisal; the shipbuilder attempted to enforce a guaranty against the defendant endorsers in spite of the lack of appraisal. Defendants sought protection under the Louisiana Deficiency Judgment Act. On first hearing, the three-judge panel held the Louisiana act applicable, in spite of the pre-emption of the area by the National Maritime Act. However, on rehearing, the Fifth Circuit en banc overruled their decision, holding the Louisiana act inapplicable. The reasoning of the court was that it was clear that Congress intended that the ready availability of credit to support interstate commerce should not be impeded by state limitations, and that the National Maritime Act should therefore supercede completely all aspects of state law at variance with that purpose. The court stated:

“ * * * ‘to engraft the various nuances of state law onto federal legislation would introduce an undesirable lack of uniformity in the interpretation of Congressional enactments’ and would impede the harmony and uniformity sought by the Act. * * * ”

In our opinion, the situation faced by the Fifth Circuit in McDermott is analogous to the one before us in the instant case. To impose the Louisiana requirements of exec-utory process on sales made pursuant to court order under Chapter X and to render such sales subject to deficiency judgments in state courts while corporate reorganization is still pending in federal court would also “introduce an undesirable lack of uniformity in the interpretation of Congressional enactments” and would impede the uniformity sought by Congress in passing the Federal Bankruptcy Act.

Moreover, resort to the Louisiana Deficiency Judgment Act is not necessary to fill any gaps in the federal bankruptcy law. Although Chapter X sales are not made pursuant to the specific appraisal and notice requirements of the Deficiency Judgment Act, there nevertheless exist procedural safeguards for the protection of both debtors and creditors. For example, once a bankruptcy petition is approved, the debt- or no longer owns the property: title vests immediately in the trustee who, as representative of the general creditors, seeks to achieve the highest price for the secured creditors in order to reduce the deficiency against the debtor, who will be protected by the discharge. Any deficiency will be claimed by the secured creditor in the status as general creditor, with a consequent reduction in the assets for distribution.

Under Chapter X, the trustee petitions, in his capacity as owner, for permission from the court to sell property. His function, in the interests of both debt- or and creditors, is to reorganize the bankrupt corporate debtor, eliminating as much of the debt as possible by sale of property as he deems it necessary. It is within his discretion to retain the property and include the secured creditor in his plan of reorganization if that option appears to be preferable upon consideration of the particular circumstances and the status of the corporate bankrupt which he is reorganizing. All petitions for sales are subject to the approval of the federal district court judge, and the opportunity to contest a petition for a sale is afforded interested parties, as was done in the instant case.

Thus, application of the Deficiency Judgment Act is not necessary in terms of safeguarding the rights of debtors and creditors. Moreover, such an application would frustrate the intent which Congress evidenced by enacting the bankruptcy act. As noted supra, Congress specifically exempted Chapter X sales from the requirement of appraisal found in other bankruptcy court sales in order to better effectuate the ultimate goal of corporate reorganization. Exclusive jurisdiction was vested in the court in which the petition for reorganization had been filed, in order that no proceeding in another court could impede the progress being made toward reorganization in the court of original jurisdiction. In fact, the goal of reorganization of a corporation to meet financial obligations gradually is at variance with the concept of the deficiency judgment, which results in the release of the debtor. For these reasons, we must hold the Louisiana Deficiency Judgment Act inapplicable to sales made pursuant to Chapter X of the federal Bankruptcy Act.

We reverse the decision of the court of appeal and set aside the ruling of the trial court sustaining the exception of no cause of action. We order the case remanded to the trial court for further proceedings. Casting of costs is reserved.

SANDERS, C. J., dissents with written reasons.

SUMMERS and MARCUS, JJ., dissent for reasons assigned by SANDERS, C. J.

SANDERS, Chief Justice

(dissenting).

In the present case, both the district court and Court of Appeal held that the deficiency judgment was barred by the failure to comply with the appraisal safeguards of LSA-R.S. 13:4106-4107, the Louisiana Deficiency Judgment Act. The majority of this Court now holds that the Louisiana Deficiency Judgment Act does not apply following a sale on petition of the creditor under Chapter X of the Federal Bankruptcy Act. 11 U.S.C. § SOI et seq. I disagree.

The Louisiana Deficiency Judgment Act provides:

LSA-R.S. 13:4106:
“If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph.
“If a mortgage or pledge affects two or more properties, movable, immovable, or both, the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the mortgage or pledge in rem against any other property affected thereby.”
LSA-R.S. 13:4107:
“R.S. 13:4106 declares a public policy and the provisions thereof can not, and shall not be waived by a debtor, but it shall only apply to mortgages, contracts, debts or other obligations made, or arising on or after August 1, 1934.”

The statute expresses the strong public policy of the state. It is well settled that the protection of the statute extends to any type of sale, judicial or private, whereby encumbered property is sold without proper appraisement. See, e. g., Carr v. Lattier, La.App., 188 So.2d 645 (1966); Universal C.I.T. Corporation v. Hulett, La.App., 151 So.2d 705 (1963); David Investment Co. v. Wright, La.App., 89 So.2d 442 (1956); Futch v. Gregory, La.App., 40 So.2d 830 (1949); Home Finance Service v. Walmsley, La.App, 176 So. 415 (1937).

In an early case applying the Louisiana Deficiency Judgment Act to a private sale, Home Finance Service v. Walmsley, supra, the Court of Appeal stated:

“It is clear from the foregoing that it has been declared to be against the public policy of this state for any holder of a mortgage to provoke a judicial sale without first having the encumbered property appraised, and that, if such mortgage holder does foreclose without such appraisal, he is prohibited from thereafter proceeding against the mortgagor for any deficiency remaining on the debt.
******
. . While the statute under consideration refers particularly to judicial sales without appraisement, we are of the opinion that the statement of the public policy therein is sufficiently broad to disclose that it was the intention of the lawmakers to place a stamp of disapproval on any practice whereby encumbered property is sold without judicial appraisement, and to sanction the type of agreement, such as the one before us, would be to allow the employment of a device calculated to defeat the underlying purposes which prompted the passage of the law.”

The federal courts have soundly held that a sale in a bankruptcy proceeding does not immunize the debt from a state deficiency judgment act. Meadow Brook National Bank v. Massengill, 427 F.2d 1055 (5th Cir. 1970); In re Wilton Maxfield Management Co, 117 F.2d 913 (9th Cir. 1941); Bowl-Opp, Inc. v. Larson, 334 F. Supp. 222 (E.D.La.1971).

In Bowl-Opp, Inc. v. Larson, supra, a diversity suit in the United States District Court for the Eastern District of Louisiana, the plaintiff sought to recover from the endorsers of a promissory note a deficiency remaining after the sale of the mortgaged property under an order of the bankruptcy court. In rendering judgment for the endorsers, the court held that the bankruptcy sale did not prevent the application of the Louisiana Deficiency Judgment Act.

In Wilton Maxfield Management Co. v. Crawford, supra, the United States Court of Appeal held that when there was a failure to comply with the California statutes relating to a deficiency judgment in a bankruptcy sale of mortgaged property, the creditor would not be entitled to a deficiency judgment.

In such cases, the state statute regulates the debtor-creditor relationship subsequent to the sale, not the bankruptcy proceeding.

The majority relies upon J. Ray McDermott and Co., Inc. v. Vessel Morning Star, 457 F.2d 815 (5th Cir. 1972). That case, however, is inapposite. It involved a creditor’s suit for a deficiency judgment under the Ship Mortgage Act, a federal statute designed to encourage the development of the Merchant Marine. The creditor’s security rights thus were created under the federal statute, rather than under state law. The Fifth Circuit Court of Appeal recognized this distinction, when it stated:

“ * * * ‘to engraft the various nuances of state law onto federal legislation would introduce an undesirable lack of uniformity in the interpretation of Congressional enactments’ and would impede the harmony and uniformity sought by the Act. * * *” (Italics mine.)

In my opinion, the Louisiana Deficiency Judgment Act is applicable. Hence, under the Act, the debt “stand[s] fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor.” See LSA-R.S. 13:4106.

In the framework of the Louisiana Civil Code, suretyship is an accessory contract. The Code is clear that when the debt has been discharged as to the principal debtor, the sureties have a real or non-personal defense which they may interpose. LSA-C. C. Arts. 3036, 3060, 3061, 3299; Simmons v. Clark, La.App., 64 So.2d 520 (1953); Brewer v. Foshee, 189 La. 220, 179 So. 87 (1938); Dennis v. Graham, 159 La. 24, 105 So. 87 (1925); Planiol, Civil Law Treatise, Vol. 2, Part 2, No. 2376, p. 352 (La. State Law Inst. trans. 1939); 1 Pothier, Obligations, trans. by William David Evans, § 380, p. 307 (1853); 1 Domat, The Civil Law in Its Natural Order, Part 1, Book III, Title IV, Art. VIII, p. 62 (William Strahan trans., Cushing ed. 1861).

The Bank, however, classifies the guarantors as co-debtors in solido, rather than sureties. Assuming its classification to be correct, the Louisiana Civil Code treats co-debtors in solido exactly as it treats sureties in the present situation. Article 2098 provides:

“A codebtor in solido, being sued by the creditor, may plead all the exceptions resulting from the nature of the obligation, and all such as are personal to himself, as well as such as are common to all the codebtors.
“He can not plead such exceptions as are merely personal to some of the other codebtors.”

As the principal debtor has been released by the Louisiana Deficiency Judgment Act, so, too, is his co-debtor in solido released. The jurisprudence recognizes that if the creditor impairs the solidary co-debtor’s subrogation rights, the co-debtor is released. See, e. g., Wilkinson v. Adams, 179 La. 630, 154 So. 630 (1934); Isaacs v. Van Hoose, 171 La. 676, 131 So. 845 (1930); Gay and Co. v. Blanchard, 32 La. Ann. 497 (1880).

I conclude, as did the Court of Appeal, that the deficiency judgment is barred.

For the reasons assigned, I respectfully dissent.

ON REHEARING

CALOGERO, Justice.

As related in our opinion following the original hearing in this matter, this suit was filed by Exchange National Bank in an attempt to collect money purportedly owed by defendants Ellis Henican, Philip E. James and Frank Spalitta. Defendants were guarantors relative to certain credit extensions to Place Vendóme Corporation. Place Vendóme Corporation is a subsidiary of Southern Land Title Corporation, both of which are presently in bankruptcy proceedings under Chapter X of the Bankruptcy Act, the chapter providing for corporate reorganization. 11 U.S.C. §§ 501 et seq. Other pertinent facts are related at length in the original opinion and will not be repeated here.

In our original opinion we held that the Louisiana Deficiency Judgment Act is not applicable to sales under Chapter X of the Bankruptcy Act. Accordingly, we reversed the decision of the Court of Appeal and set aside the ruling of the trial court sustaining defendants’ exceptions of no cause and no right of action, and ordered the case remanded to the trial court for further proceedings, in effect giving renewed life to Exchange National Bank in its attempt to collect from the guarantors the unpaid portion of the debt.

We granted a rehearing in this matter upon application of defendants to reconsider their contention that, to preserve the right to deficiency judgment, the sale in the bankruptcy reorganization was required to be (and yet was not) in compliance with Louisiana’s Deficiency Judgment Act, as well as to reconsider a contention raised for the first time in defendants’ post-argument brief on original hearing that Exchange released the principal debtor, Place Vendóme Corporation, without an express reservation of rights against defendant co-debtors, thus effecting a release of defendants under Civil Code Article 2203.

After careful consideration we reinstate the opinion and decree which we rendered originally.

Taking up in reverse order defendants’ arguments presented upon rehearing, we will first consider defendants’ contention that they have been discharged by virtue of plaintiff’s remission of conventional discharge of Place Vendóme Corporation.

Defendants call our attention to Article 2203 of the Louisiana Civil Code which provides as follows:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
“In the latter case, he can not claim the debt without making a deduction on the part of him to whom he has made the remission.”

They thereupon direct our attention to the petition filed by Exchange National Bank and its affiliate, National American Bank of New Orleans, in the debtor corporation’s reorganization in federal court in which the two banks as joint petitioners sought a sale of mortgaged property.

In that petition seeking the sale of the immovable property, mortgaged to secure the debt which was principally that of Place Vendóme Corporation, plaintiff and its affiliated New Orleans bank made the following representations to the federal court:

“16.
“Petitioners further represent that if they are the successful bidders at said proposed sale, they will, prior to passing of the Act of Sale, to them of said properties:
“(a) Pay to the Trustee the general overhead expenses in connection with the operation of said properties and a reasonable contribution to administrative costs herein;
“(b) Release the debtor-corporation, and any of its subsidiaries, from liability for any deficiency which may become due on the mortgage indebtedness.”

This statement of intent to release the debtor corporation from any deficiency which may become due was not carried forward into either the subsequent report of the special master or the district court order confirming that report and authorizing the sale. Nor was there executed thereafter any instrument, prior to the passing of the Act of Sale or otherwise, in which the plaintiff bank did formally comply with the promise contained in the petition.

Petitioners were the successful bidders at the auction sale, for the property was purchased by plaintiff’s co-petitioner and local affiliate.

Furthermore plaintiff did not at any time expressly reserve its rights against the guarantors, either in the language employed in the petition or in any document executed thereafter.

Plaintiff takes the position that since the proposal contained in the petition was not thereafter made a prerequisite to the sale of the property, and was not thereafter incorporated in an independent consummating instrument by the plaintiff bank, such promise or commitment in the bank’s petition should be considered as irrelevant sur-plusage.

Defendants’ contention, on the other hand, is that the debtor corporation has effectively been released inasmuch as the property was sold at auction in the reorganization (and purchased by plaintiff’s affiliate), the court having been induced to order the sale upon plaintiff’s promise to release the debtor corporation from any deficiency. They support their position by reference to a doctrine of preclusion (alternately designated as judicial estoppel), a purportedly applicable legal principle which is frequently employed in the federal jurisprudence. Under this principle “a party may be precluded by a prior position taken in litigation from later adopting an inconsistent position in the course of a judicial proceeding.” IB J. Moore, Federal Practice 0.405, at 765 (2nd ed. 1974). See also In re Double D Dredging Company, 467 F.2d 468 (5th Cir. 1972) and Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3rd Cir. 1953). Defendants contend that the same result is dictated by principles of Louisiana law, citing Article 2291 of the Civil Code (judicial confession), Johnson v. Marx Levy & Bro., 109 La. 1036, 34 So. 68 (1902); Williams v. Gilkeson-Sloss Comm. Co., 45 La.Ann. 1013, 13 So. 394 (1893); Gaudet v. Gathreaux, 40 La.Ann. 186, 3 So. 645 (1888); Wright, Williams & Co. v. Trustees of the Bank of the United States, 7 La.Ann. 123 (1852); Gremillion v. Dubea, 108 So.2d 238 (La.App.2nd Cir. 1958) and Gulf States Finance Corp. v. Moses, 56 So.2d 221 (La.App.2d Cir. 1951).

Although the foregoing presents an interesting and perhaps close legal issue, there are two reasons why we find it inappropriate and unnecessary to resolve it at this stage of the litigation. One reason for our decision is that defendants have not filed an answer which incorporates the affirmative defense of conventional or other discharge. See La.C.C.P. Art. 1005 which requires pleading of affirmative defenses including “extinguishment of the obligation in any manner.”

Furthermore, the only matter which we have been properly called upon to review in this litigation is the validity of the judgment of the district court and Court of Appeal dismissing plaintiff’s petition on exceptions of no cause and no right of action, upon a finding that non-compliance with Louisiana’s Deficiency Judgment Act prevents plaintiff’s recovering from defendants.

The only reason documents relating to plaintiff’s purported remission or conventional discharge of Place Vendóme Corporation were even included in the record is that they were attached to an affidavit filed by counsel for defendants in connection with their exceptions of no cause and no right of action.

Although we may have the right, in the interest of expediting termination of this litigation, to decide this issue which is not procedurally before us, we find the stae of the record with respect to this conventional discharge matter incomplete.

When and if an affirmative defense of conventional discharge is urged, such evidence as may be presented will likely be admissible. This evidence might include testimony about why the promise to release the debtor corporation was a part of the bank’s petition and why it was excluded from the master’s report and trial court’s order authorizing the sale.

For these reasons, we do not resolve the issue not properly before us in this litigation concerning whether plaintiff has remitted or conventionally discharged Place Vendóme Corporation from any deficiency judgment, and if so, whether defendants, solidary co-debtors with Place Vendóme, have likewise been discharged under the provisions of Article 2203 of the Civil Code.

With respect to defendants’ initial argument on rehearing, that this Court erred in its original opinion when we found Louisiana’s Deficiency Judgment Act not applicable to sales under Chapter X of the Bankruptcy Act, we have studied that contention anew and find it to be withoul merit.

For the reasons more fully set out in that original opinion, we conclude anew that Louisiana’s Deficiency Judgment Act is not applicable to sales under Chapter X of the Bankruptcy Act and that plaintiff’s petition in the district court should not for that reason have been dismissed.

Accordingly, our opinion and decree upon original hearing are reinstated. We reverse the decision of the Court of Appeal and set aside the ruling of the trial court sustaining the exceptions of no cause and no right of action. We order the case remanded to the trial court for further proceedings.

SANDERS, C. J., dissents, adhering to the views expressed in dissent in original hearing.

SUMMERS, J., dissents and adheres to the views expressed by the Chief Justice in his dissent in original hearing.

MARCUS, J., dissents.

      . The rules governing deficiency judgment in Louisiana are set forth in Articles 2771 and 2772 of the Code of Civil Procedure, and La.R.S. 13:4106 and 4107.

      . Defendants are actually solidary co-debtors, along with Place Vendóme Corporation, as is evident from the instrument they signed, Continuing Guaranty. They were not simply sureties. The instrument provided as follows :
      “Continuing Guaranty .
      “IN CONSIDERATION of the National American Bank of New Orleans, at my request giving or extending terms of credit to
      PLACE VENDOME CORPORATION
      hereinafter called debtor, I hereby give this continuing guaranty to the said National American Bank of New Orleans, New Orleans, La., hereinafter referred to as the Bank, its transfereees or assigns, for the payment in full together with interest, fees and charges of whatsoever nature and kind, of any indebtedness, direct or contingent of said debtor to said Bank, up to the amount of ($1,824,234.00) ONE MILLION EIGHT HUNDRED TWENTY-POUR THOUSAND, TWO HUNDRED THIRTY-POUR & NO/lOO DOLLARS ; whether due or to become due, and whether now existing or hereafter arising; I hereby bind and obligate myself, my heirs and assigns, in solido with said debtor, for the payment of said indebtedness precisely as if the same had been contraeted and was due or owing by me in person, hereby agreeing to and binding myself, my heirs and assigns, by all the terms and conditions contained in any note or notes signed or to be signed by said debtor, making myself a pa/rty thereto ; and, waiving all notice, including notice of demand, dishonor, or protest, and all pleas of discussion and division, I agree to pay upon demand at my time to said Bmk, its transferees or assigns, the full amount of said indebtedness up to the amount of this guaranty, together with interest, fees and charges, as above set forth, becoming subro-gated in the event of payment in full by me to the claim of said Bank, its transferees or assigns, together with whatever security it or they may hold against said indebtedness. The Bank may extend any obligation of the debtor one or more times, and may surrender any securities held by it without notice or consent from me, and I shall remain at all times bound hereby, notwithstanding sueh extensions, and/or surrender.

      “This guaranty shall continue in full force and effect and shall be terminated only upon receipt by the Bank of written notice of revocation from me, or upon receipt of notice of my death, and that, in either of said events, my liability hereon shall continue as to obligations then existing, and as to any and all renewals or extensions thereof made after said event or events.
      “IT IS EXPRESSLY AGREED that this continuing guaranty is absolute and complete, and that acceptance and notice of acceptance thereof by the Bank are therefore unnecessary and they are hereby expressly waived.” (Emphasis provided)

      . Plaintiff’s counsel has not specifically protested defendants’ raising this issue and has argued the demerit of defendants’ position.


source: Caselaw Access Project

author: DIXON, Justice. BARHAM, Justice MARCUS, Justice. DIXON, Justice CALOGERO, Justice

license: Public Domain

text:
    STATE of Louisiana v. Eugene L. WALLACE, Jr., et al. STATE of Louisiana v. Eugene L. WALLACE, Jr.
    Nos. 55661 and 55662.
    Supreme Court of Louisiana.
    March 31, 1975.
    On Rehearing Nov. 4, 1975.

      William J. Guste, Jr., Atty. Gen., Julian R. Murray, Jr., Barbara Rutledge, Asst. Attys. Gen., George T. Mustakas, II, Staff Atty., Melvin Barre, Dist. Atty., New Orleans, for plaintiff-appellant.
    Edward M. Baldwin, New Orleans, for Willis J. Poirrier, Jr.
    Robert I. Broussard, Gretna, for Henry Hymel and Raymond LeBouef.
    John P. Nelson, Jr., New Orleans, for Stuart E. Creel and Gerard Alexander.
    Robert S. Mellon, Mellon & Cavanaugh, Denham Springs, for Eugene L. Wallace, Jr.
   DIXON, Justice.

The State appeals these two cases, after the trial judge sustained motions to quash the indictments.

All six defendants, Eugene L. Wallace, Jr., Stuart Creel, Henry Hymel, Willis Poirrier, Raymond LeBouef and Gerard Alexander, were indicted in case No. 55661 for the violation of R.S. 14:26, conspiring to commit public bribery. In No. 55662 Wallace alone was charged with the violation of R.S. 14:67, for theft by fraud of $68,500 from the South Louisiana Port Commission.

The two cases have a common issue: are the defendants immune from prosecution under Article 19, § 13, Louisiana Constitution of 1921 and R.S. IS :468 because they appeared and testified before a grand jury investigating public bribery? As for the defendant Eugene L. Wallace, Jr., there is the additional question of whether his testimony before a federal grand jury, when used by the State grand jury, resulted in his immunity from State prosecution.

On March IS, 1974 the prosecutor sent letters to the defendants inviting their appearance before the grand jury on March 26. All defendants appeared, except Wallace.

The trial judge interpreted the letters of “invitation” as containing a degree of compulsion equal to a subpoena, and held that, having allowed the defendants to testify before the grand jury, they were automatically cloaked with immunity from prosecution under the Constitution and statute.

We find that the self incriminating testimony of the defendants was not “compelled” under Article 1, § 11 of the Louisiana Constitution of 1921, nor under the Fifth Amendment of the United States Constitution; the record demonstrates that the defendants (with the exception of Wallace) voluntarily appeared before the grand jury and'testified, after having been fully warned by the prosecutor of their rights not to appear and not to testify; and that the defendants knowingly waived their constitutional protection against self incrimination.

The motions to quash were tried on the basis of stipulations among the parties, and the introduction of grand jury testimony of each defendant before the State grand jury, except Wallace, whose federal grand jury testimony, used by the State grand jury, was introduced.

Creel was advised that he need not give any testimony before the grand jury that would tend to incriminate him; that he could terminate the examination at any time; that he had a right to consult with an attorney, and that the examination would be recessed at any time for such consultation; that the prosecutor possessed information, if true, “would affect” the defendant; that the defendant need not testify; that if more time were desired by the defendant to consider whether he would testify, he would be excused until the following day in order to consult a lawyer. This explanation was made to Creel by the prosecutor both out of the presence of the grand jury, in the prosecutor’s office, and at the beginning of his testimony before the grand jury. Creel stated that “it is rather short notice but I made my decisión to testify and I am going to stay with it— stand by that.”

Hymel was informed that he had a right not to appear before the grand jury; that if he wished- he could return on the following day and inform the prosecutor if'he wished “any additional time” (to which Hymel replied, “No, this is fine. I’m ready.”); Hymel was warned specifically that he need not answer any questions which tended to incriminate him; that his testimony could be used against him; that the examination would be recessed if he wished to consult his attorney at any point.

Poirrier was informed of his right to seek legal advice to determine whether he would appear; that he could postpone until the following day a decision; that he need not appear before the grand jury; that he need not answer any questions which might tend to incriminate him; that the testimony could be used against him; the examination could be recessed for the defendant to consult with his lawyer; that the prosecutor had information which might “implicate you in a violation.”

LeBouef was informed by the prosecutor that he had received allegations of possible criminal violations by the defendant; that he could postpone a decision about the appearance until the following day; that he need not answer any questions which might tend to incriminate him; that the examination would be recessed at any time for the defendant to consult his attorney. Le-Bouef affirmed that he understood his rights and was willing to answer questions before the grand jury.

Alexander was likewise advised that the prosecutor possessed allegations of his possible criminal violations; that he could have until the following day to consult an attorney and make a decision about his testimony; that he need not answer questions which might tend to incriminate him; that his testimony could be used against him; that the hearing would be recessed if the defendant wished to consult his attorney during the examination.

The defendants do not complain before us that they were inadequately informed of their rights (although this is not conceded). At one point in brief it is noted that Hymel “was not told in the Grand Jury” that he did not have to testify.

The evidence before us shows that the defendants were adequately informed of their rights against self incrimination, of the fact that the grand jury was concerned about allegations of criminal activity of each of the defendants, that they would not be required to answer questions which tended to incriminate them, and need not testify unless they wished, and could postpone a decision about whether to testify until the following day. The record is clear that these defendants made an informed decision to waive their rights against self incrimination and to testify before the grand jury. The decision to testify was theirs. They were not compelled.

Defendants argue that, in order to reverse the district court’s ruling on the motion to quash, we must overrule State v. Smalling, 240 La. 887, 125 So.2d 399 (1960), on rehearing, 240 La. 915, 125 So.2d 409 (1960) and State v. Callahan, 247 La. 525, 172 So.2d 668 (1965). Although the defendants can find confort from dicta in the Smalling case, both the trial court and this court specifically found that the defendant was compelled to testify before the grand jury, and that his testimony formed the basis of the indictments which were correctly quashed by the trial court.

The issue in the Callahan case was whether the indictments, quashed by the district court, were based on the defendant’s testimony before a grand jury. In that case, the State conceded “that the defendant could not refuse to testify before the Grand Jury.”

It is the position of the defendants that their appearance before the grand jury was, to some degree at least, “compelled.” Maryland v. Panagoulis, 253 Md. 699, 253 A.2d 877 (1969); Maryland v. Comes, 237 Md. 271, 206 A.2d 124 (1965); Atkinson v. State, 190 Ind. 1, 128 N.E. 433 (1920). Further, defendants argue that, having been compelled to appear, Article 19, § 13 of the Louisiana Constitution of 1921 automatically granted immunity of use from such testimony (except perjury).

Some review of the jurisprudence of the State is justified in view of the apparent confusion about the conflict between the constitutionally protected right against self incrimination and the effect of statutes granting certain immunities in return for testimony concerning public bribery.

In State v. Rodrigues, 219 La. 217, 52 So.2d 756 (1951), the defendant had been held in contempt for failure to answer questions before a grand jury. Rodrigues is a confusing case. The opinion does not make it clear, but seems to be based on these facts: the witness was asked, before the grand jury, whether he had paid certain money; he declined to answer on the grounds of possible self incrimination; the court read to him, in addition to Article 1, §11, Article 19, § 13 (immunity from use of self incriminating testimony) of the Louisiana Constitution of 1921. In affirming the conviction, the court seemed to assume that the defendant had been granted immunity. The defendant had refused to testify, even after the trial court read to him the provisions of Article 19, § 13. The contempt conviction was affirmed.

In State v. Dominguez, 228 La. 284, 82 So.2d 12 (1955), the defendant was found guilty of contempt in the trial court for refusing to answer the questions of the grand jury investigating an allegation of public bribery. Defendant was also under federal indictment for a related offense. Although reversing the conviction because of a belief that State immunity would not protect defendant from federal prosecution, the court held defendant would have been protected from prosecution in the State court if he had testified:

“In the instant case, had relator testified in response to the questions propounded to him in connection with the investigation of public bribery, he would have enjoyed full immunity from prosecution under State law. The constitutional provision, Art. 19, § 13, prohibits the use of such testimony against him ‘in any judicial proceedings except for perjury in giving such testimony’. Accordingly, even if relator’s answers to the questions propounded had been a full confession of his gambling activities, as charged in the pending indictments brought by the State against him, the State would have been barred from using such testimony in the prosecution thereof, as well as from its use in any other judicial proceeding. See, State v. Rodrigues, 219 La. 217, 52 So.2d 756.” (Emphasis added). 82 So. 2d 12, 17.

The court did not discuss the result of voluntary, as compared to compelled, testimony.

In State v. Ford, 233 La. 992, 99 So.2d 320 (1958), the defendant was granted immunity, refused to testify nevertheless, and was convicted of contempt. The conviction was affirmed. (The court erroneously held that the Fifth Amendment of the United States Constitution was not available to a witness in a State prosecution. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Murphy v. Waterfront Commissioners, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

Defendants contend that the Louisiana cases establish a bar to prosecution (or at least to the use of any testimony) of any witness who appears before a grand jury and testifies in a public bribery case. This is not supported by the holdings of the Louisiana cases. Neither the constitutional provisions nor the statutory provisions support defendants’ contentions.

Certainly the federal interpretations of the Fifth Amendment of the United States Constitution do not support the defendants’ position that, once a witness testifies in a bribery investigation before a grand jury, he is automatically granted “use immunity” of his testimony. In United States v. Winter, 348 F.2d 204, 207 (C.A.A.2 1965) it was said “to suggest that once an individual is named by witnesses before a grand jury under circumstances which may lead to his indictment he thereby automatically gains immunity from subpoena would denude that ancient body of a substantial right of inquiry.”

Again, in United States v. Scully, 225 F.2d 113, 115-116 (C.C.A.2 1955), the court stated :

“The principle which underlies the rule that the defendant in a criminal trial may refrain even from being sworn as a witness, has no application to proceedings before a Grand Jury. .
“ . . . Such a body is not charged with the duty of deciding innocence or guilt and, for this reason, its proceedings have never been conducted with the assi-dious regard for the preservation of procedural safeguards which normally attends the ultimate trial of the issues. Thus, in such proceedings, there is no right to counsel, no right of confrontation, no right to cross-examine or to introduce evidence in rebuttal and ordinarily no requirement that the evidence introduced be only such as would be admissible upon a trial.” (Citations omitted).

No authority has been suggested to the court to indicate that there can not be a voluntary and knowing waiver of the constitutional right against self incrimination by a witness before a grand jury, even though that witness might be under investigation for possible criminal activities.

The additional question involving the defendant Wallace arose from the use by the State grand jury of at least a part of his testimony before a federal grand jury. Wallace had received an invitation to appear before the State grand jury, as had the other defendants. Unlike the others, he did not appear.

Before the federal grand jury, Wallace was advised by the prosecutor that the grand jury was investigating violations of federal criminal laws which might involve Wallace directly or indirectly. Wallace was advised of his constitutional right against self incrimination, and was offered an opportunity to consult with his counsel outside the presence of the grand jury, and was informed that anything he said could be used against him. In the course of the testimony, Wallace did step outside to talk with his lawyer, and did resort to the protection of the Fifth Amendment before the grand jury as to certain questions.

The defendant argues that, since Wallace’s testimony before the federal grand jury was obtained in response to a subpoena, it was “compelled” and that, consequently, his self incriminating testimony was obtained in violation of the Fifth Amendment of the United States Constitution. The State contends that Wallace was not compelled to testify before the federal grand jury. The record before us, however, indicates that Wallace received an entirely different treatment before the federal grand jury than did the other defendants before the State grand jury. The other defendants were informed that they need not testify at all, and that they could delay a decision until the next day. The federal prosecutor did not inform Wallace, in that portion of the grand jury testimony in the record, that he need not testify. He was subpoenaed. He was called into the grand jury room more than once, apparently, and was informed on one occasion by the prosecutor that he would not be released from the subpoena. Although he was informed that he could not be compelled to testify against himself, he was also told “you can take the Fifth Amendment on anything that may incriminate you personally. You do not have the right to take the Fifth Amendment on anything that may be incriminating to Mr. Kramer or anyone else.” He was then allowed to step outsde and consult with a lawyer, who was identified by the prosecutor as “Mr. Kramer’s attorney.”

We cannot gather from the testimony before us that Wallace knowingly waived any right accorded him before the federal grand j.ury. He was compelled to appear and compelled to testify. Although he did resort to the Fifth Amendment on occasion, he answered many questions, some of them involving the other defendants in the cases before us. It does not appear that Wallace knew that his testimony would be given to the State grand jury.

The question, then, is whether Wallace, subpoenaed to testify before the federal grand jury, informed of his constitutional right against self incrimination, was “compelled to give evidence against himself” in violation of Article 1, § 11 of the Louisiana Constitution of 1921 and Amendment Five of the United States Constitution.

State v. Harrell, 228 La. 434, 82 So.2d 701 (1955) and State v. Jemison, 240 La. 787, 125 So.2d 363 (1960), sustained motions to quash when the defendants, one accused of murder and the other of theft, were required to testify before the grand jury without being informed of the constitutional right against self incrimination. The defendants before us, except for Wallace, were fully informed and were not required to testify. Wallace, however, was not informed in the federal system as fully as the defendants before the State grand jury. He was told he need not incriminate himself, and was given the right to step outside and consult a lawyer who represented another person under investigation.

Wallace was not informed as was the defendant in United States v. Capaldo, 402 F.2d 821 (C.C.A.2 1968) “that he had a right to remain silent.” Many of the questions asked of Wallace and much of the subject matter of his examination involved his dealings with the other defendants in this case, members of the South Louisiana Port Commission. It is difficult for us to see how these questions and questions about this subject matter would not “tend to incriminate.” Nevertheless, it is not difficult to understand how the incriminating tendencies of such testimony would escape a witness before a grand jury.

If Wallace’s testimony before the federal grand jury had been taken before a State grand jury, it would have been “compelled” (Article 1, § 11 of the Louisiana Constitution of 1921). Article 19, § 13 of the Louisiana Constitution of 1921 permits the compulsion in a bribery investigation, but prohibits the use of the compelled testimony in proceedings against the witness.

There is no longer the separation between the state and federal systems that once existed, allowing one system to obtain evidence in a manner prohibited to the other, and permitting its use in either.

Murphy v. Waterfront Commissioners, supra, held that constitutional privilege against self incrimination protects a state witness against incrimination under federal as well as state law, and a federal witness against incrimination under state as well as federal law.

We will not sanction procedures under the federal system which violate Louisiana Constitution guarantees. Consequently, it was error to use in the State grand jury proceedings the testimony Wallace was compelled to give before the federal grand jury.

As to the defendant Wallace, the ruling of the trial judge quashing the indictments is affirmed. As to the defendants Creel, Hymel, Poirrier, LeBouef and Alexander, the ruling of the trial judge quashing the indictments against them is reversed, the indictments are reinstated and the case is remanded to the district court for further proceedings.

SANDERS, C. J., concurs in part, but dissents as to the quashing of the bill of information against Wallace.

BARHAM, J., concurs in part and dissents in part and assigns reasons.

MARCUS, J., concurs in part but dissents as to the quashing of the bill of information against Wallace.

BARHAM, Justice

(dissenting in part, and concurring in part).

I dissent from the majority’s disposition of the issue regarding the use in the State grand jury of a part of Wallace’s testimony before a federal grand jury. In their approach to this issue, the majority have adopted a very dangerous view that is contrary to that prevailing in federal and other state jurisdictions.

While I strongly believe in the protection of individual liberty and in the protection of the Fifth Amendment right against self-incrimination, I do not find that these protections are encroached upon under the facts surrounding Wallace’s testimony before the federal grand jury. Rather, I find that the majority have created a trap for the unwary grand jury. The majority view affords protection that is not within the ambit of the constitutional guarantee against self-incrimination.

I respectfully dissent in part for these reasons.

I concur in the disposition of the majority as to the defendants who appeared before the State grand jury.

On Rehearing

MARCUS, Justice.

Defendant, Eugene L. Wallace, Jr., was indicted by the St. Charles Parish Grand Jury for conspiracy to commit public bribery, in violation of La.R.S. 14:26 and La. R.S. 14:118, and for theft, in violation of La.R.S. 14:67. Defendant filed motions to quash the indictments on the ground that, pursuant to La.Const. art. 19, § 13 (1921), he enjoyed immunity from prosecution for both offenses. The trial judge granted the motions to quash on this ground. From this adverse ruling, the state appeals.

The relevant facts in this case are not in dispute. In response to a subpoena, defendant testified as a witness before a federal grand jury investigating the activities of the Family Health Foundation, of which defendant was Executive Director. During the course of the investigation, he responded at length to questions concerning his duties as a consultant for the South Louisiana Port Commission. Defendant was subsequently invited to appear before the St. Charles Parish Grand Jury, which was investigating activities of the South Louisiana Port Commission. Defendant did not accept this invitation, and was not thereafter subpoenaed to appear. Instead, the state presented for the grand jury’s consideration a transcript of the testimony that he had earlier given before the federal grand jury. In answer to defendant’s prayer for oyer, the state averred that it also intended to use his testimony before the federal grand jury in the trial.

In sustaining the motions to quash, the trial judge held that defendant was immune from prosecution on the basis of La.Const. art. 19, § 13 (1921), which provides as follows:

Any person may be compelled to testify in any lawful proceeding against any one who may be charged with having committed the offense of bribery and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceedings, except for perjury in giving such testimony.

The fifth amendment to the United States Constitution states that no person shall be compelled in any criminal case to be a witness against himself. Art. 1, § 11 of the Louisiana Constitution of 1921 affords the same guarantee, “except as otherwise provided in this Constitution.” The 1921 Constitution does provide otherwise. Art. 19, § 13, cited in full above, authorizes the compulsion of self-incriminating testimony in bribery investigations. But the prosecution may compel a witness to testify against himself only if it guarantees that his testimony will not be used against him in any judicial proceeding, except for perjury in giving such testimony; an immunity statute is constitutional only if its scope is coextensive with the privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Hence, neither the compelled testimony of a witness that was obtained in one forum, nor the fruits of such testimony, can be used against him in another forum. Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

The fifth amendment, however, like the instant immunity provision, proscribes only the use of compelled inculpa-tory testimony, not testimony given voluntarily. The privilege against self-incrimination is a personal right, which may be waived. It is “solely for the benefit of the witness, and is deemed waived unless invoked.” Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951). A witness therefore waives the privilege by exercising his option to answer. 8 J. Wig-more, Evidence § 2276, at 456 (McNaughton rev. ed. 1961).

Our review of the record in this case convinces us that defendant knowingly and intelligently waived his privilege against self-incrimination when he testified before the federal grand jury regarding his involvement with the South Louisiana Port Commission. Prior to questioning, defendant was advised of his constitutional privilege against self-incrimination. The United States Attorney told him that he would not be required to testify against himself or to furnish any information that might incriminate him. He also warned defendant that any information he supplied could be used against him in any legal proceeding. The United States Attorney further advised him that, while he could not have his attorney present during the questioning, he could leave the grand jury room at any time in order to consult with him. At a later point in the examination, he again advised defendant of his fifth amendment privilege. Defendant, in fact, did exercise this privilege on at least one occasion during the questioning when he declined to answer a question propounded. There is no evidence in the record that defendant attempted to exercise his privilege against self-incrimination regarding his involvement with the South Louisiana Port Commission but was prevented from doing so by the United States Attorney. Furthermore, defendant, himself a lawyer, was represented during the investigation by the attorney for the Family Health Foundation. The record discloses that defendant several times asked, and was permitted, to leave the grand jury room to consult with him.

Defendant argues, however, that all of his testimony before the federal grand jury was compelled because of the fact that he testified in response to a subpoena. This argument has no substance. Witnesses called before a grand jury are entitled to exercise their privilege against self-incrimination. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). In the present case, the United States Attorney emphasized this fact to defendant. It cannot be said, therefore, that his testimony was compelled merely because he was subpoenaed to testify. As one federal court has aptly stated:

Response to a grand jury subpoena does not constitute coercion. The grand jury is authorized to call witnesses in the course of its deliberating and witnesses are required as a public duty to testify. If a witness is asked questions which tend to incriminate him, it is his duty to claim the privilege and refuse to testify.

United States v. Wortman, 26 F.R.D. 183, 205 (E.D.Ill.1960). Accord, Kitchell v. United States, 354 F.2d 715 (1st Cir. 1965), cert. denied, 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032 (1966); United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965).

In State v. Smalling, 240 La. 887, 125 So. 2d 399 (1960), and in State v. Callahan, 247 La. 525, 172 So.2d 668 (1965), indictments were quashed against defendants when their testimony before a state grand jury investigating public bribery formed the basis for their prosecution. These cases are distinguishable from the one at bar. In neither Smalling nor Callahan does it appear that the witness was affirmatively warned, prior to questioning, as he was here, that he could exercise his fifth amendment privilege against self-incrimination. However, as stated above, the United States Attorney, in this case, advised defendant of his fifth amendment privilege against self-incrimination and that his testimony could be used against him in any legal proceedings. It is clear that defendant’s subsequent waiver was knowingly and intelligently made. Hence, unlike the testimony in Smalling and Callahan, defendant’s testimony was not compelled.

Finally, defendant asserts that the testimony became “compelled” when it was introduced in the state grand jury proceeding in transcript form without his consent. This argument likewise has no substance. This court must examine only the circumstances in which the inculpatory testimony was originally given. For once the privilege against self-incrimination is effectively waived, as it was here, then the information given is admissible as evidence at any subsequent trial. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed. 2d 1047 (1968); United States v. Houp, 8 Cir., 462 F.2d 1338, cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972).

Since we find that defendant knowingly and intelligently waived his privilege against self-incrimination in the federal grand jury proceeding, we hold that La.Const. art. 19, § 13 (1921) does not immunize him from prosecutions based in whole, or in part, on the testimony therein given. This provision, which would have shielded defendant from prosecution if his testimony regarding public bribery had been compelled, is inapplicable. When the privilege against self-incrimination is waived, “statutory [in this case, state constitutional] immunity disappears.” Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264 (1949).

DECREE

For the reasons assigned, our ruling on original hearing affirming the quashing of the indictments against Eugene L. Wallace, Jr. is set aside and vacated; and it is now ordered that the ruling of the trial judge sustaining the motions to quash the indictments is reversed, and the cases are remanded to the trial court for further proceedings not inconsistent with this opinion.

SUMMERS, J., dissents.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

Wallace was compelled to testify before the federal grand jury. (He was not compelled to incriminate himself). He could have been compelled to testify in the state grand jury investigation for bribery. He had no right against self-incrimination in the bribery investigation.

But when his compelled testimony was used against him to obtain these indictments, Wallace’s rights under Article 19, § 13 of the Louisiana Constitution of 1921 were violated.

CALOGERO, Justice

(dissenting).

I dissent from this majority opinion on rehearing because I am of the opinion that the result of our original decision was correct and that the legal issues in this case were adequately resolved there. I am specifically in disagreement with the holding in the majority opinion on rehearing that defendant Wallace was not immune from prosecution after his testimony before the federal grand jury was presented in transcript form to the state grand jury.

The 1921 Louisiana Constitution provides an exception to its general constitutional protection against self-incrimination. Article 19, § 13 provides that:

“Any person may be compelled to testify in any lawful proceeding against any one who may be charged with having committed the offense of bribery and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceedings, except for perjury in giving such testimony.”

When there was presented to the state grand jury the transcript of Wallace’s previous sworn testimony, he was, in effect, being compelled to testify in a lawful proceeding directed toward investigation of bribery and against a person “who may be,” and in fact later was, “charged with having committed the offense of bribery,” namely himself. Wallace probably could not have enjoined the prosecutor’s presentation of the transcript to the grand jury; indeed, he probably did not even know that his testimony could be and/or would be so used. When Wallace made his statements, they constituted sworn testimony, and their subsequent transcription and use before a state forum does not alter their nature. Although Wallace did not personally respond to questions before the state grand jurors, his words were read to them as his own. At the moment of that reading, Wallace was effectively giving compelled testimony. At that moment, he was entitled, at a minimum, under Article 19, § 13 of the 1921 Constitution, to have further use of the testimony barred. It could not be used by that state grand jury as a basis for indicting him, nor in any judicial proceedings thereafter, because the Constitution demands that “such testimony shall not after-wards be used against him in any judicial proceedings, except for perjury in giving such testimony.” The indictments returned by that grand jury were, I feel, illegal and void.

Because Wallace was given the opportunity to take the Fifth Amendment by the federal prosecutor, the' majority of the Court feels that he was not compelled to testify before either the federal or state forum. I do not agree. Because the testimony was presented in transcript form to the state grand jury, I feel that we must analyze the testimony as if it had been given before the state tribunal. We read these questions and answers as if the state prosecutor were asking the questions of a witness appearing before a state grand jury. When the state prosecutor tells a witness that he has a right not to answer questions which may incriminate him, is that statement sufficient to advise defendant that he need not testify as to matters of public bribery? After all, the state constitutional guarantee against self-incrimination has an exception, “unless otherwise provided.” And the Constitution does provide otherwise in relation to public bribery. Any testimony a witness gives about public bribery under these conditions, save testimony given in the face of specific advice from the prosecutor that he need not answer questions about public bribery because he is not being compelled to answer them, is compelled testimony.

For these reasons, I respectfully dissent.

      . “Any person may be compelled to testify in any lawful proceeding against .any one who may be charged with having committed the offense of bribery and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceedings, except for perjury in giving such testimony.”

      . “Any person may be compelled to testify in any lawful proceeding against another charged with commercial bribery, public bribery, bribery of voters or corrupt influencing, and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or expose him to public infamy; but such testimony shall not after-wards be used against him in any judicial proceeding, except for perjury in giving such testimony.”

      . In brief, defendants in the instant ease argue that, although not mentioned in the opinion of this court, Callahan signed an instrument waiving all his constitutional rights and agreeing that all testimony given by him in the matter before the grand jury could be used against him in any legal proceedings. In the Callahan case the waiver of constitutional rights was read to the witness; he was informed that he could not be compelled to give testimony that might incriminate him, but that there were “departmental regulations” of his employer, the police department, which made his failure to testify grounds for dismissal from his employment. The effect of this waiver, and whether it was voluntary pr compelled, was apparently not made an issue before this court.

      . In re Mitchem, 194 La. 454, 193 So. 704 (1940), came to this court on an interlocutory ruling of the trial judge, who had refused to permit certain testimony from Mitchem, who sought to have a grand jury subpoena duces tecum quashed. The immunity statute there involved (Dart’s Criminal Statutes, § 795) differed from the constitutional and statutory grant of immunity which is involved in the instant case. Section 795 of Dart’s Criminal Statutes was a grant of transactional immunity, which provided that after self incriminating testimony, “no prosecution can afterwards be had against him concerning matters upon which he has testified.”
      The 1921 constitutional immunity provision and R..S. 15:468 are “use immunity” statutes, and not “transactional” immunity, and perhaps not “derivative use” immunity statutes; they would perhaps be subject to constitutional attack under the doctrine of Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). The 1972 immunity statute (C.Cr.P. 439.1), however, granting “derivative use” immunity, seems to have been drawn to meet the constitutional standards in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) and Zicarelli v. New Jersey State Commission, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972).

      . On original hearing, we held that the trial judge properly sustained the motions to quash the indictments as to defendant Wallace in Nos. 55,661 and 55,662, and we reversed his granting of motions to quash as to five other defendants indicted in No. 55,661. A rehearing was granted, on application by the state, so that we might reconsider our holding on original hearing that defendant Wallace was immune from prosecution.

      . The 1921 Constitution was in effect at the time defendant was indicted. LaJEt.S. 15 :468 is an almost identical immunity provision.

      . In Callahan, the state conceded that the defendant could not have refused to testify before the grand jury probing public bribery. 247 La. at 529, 172 So.2d at 669.


text:
    Earl E. WALKER v. STATE PARKS AND RECREATION COMMISSION.
    No. 56723.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: State Parks and Recreation Commission applying for certiorari or writ of review to the Court of Appeal, First Circuit, (Civil Service Commission). 319 So.2d 517.

Writ denied. We find no abuse of discretion in the remand.


text:
    STATE of Louisiana v. Richard Norman GLOVER.
    No. 56812.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Richard Norman Glover, applying for supervisory and remedial writs.

Granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles R. Ward, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 10th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Richard Norman GLOVER.
    No. 56894.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Harry F. Connick, District Attorney, Parish of Orleans applying for Writ of Certiorari.

Granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles R. Ward Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 10th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Michael Lee CONNELL v. Vergie Dell CONNELL.
    No. 56941.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Vergie Dell Connell, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu, 316 So.2d 421.

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


text:
    Ross CATES and Larry Cates v. BEAUREGARD ELECTRIC COOPERATIVE, INC., et al.
    No. 56949.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Ross Cates and Larry Cates, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu, 316 So.2d 907.

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


text:
    Donald R. COLLINS v. A. Jerry SLOCUM et al.
    No. 56922.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Morgan W. Walker, Jr., Third Party Defendant, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 317 So.2d 672.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    Leo HETH v. Cheryl Allen MOORE, Administratrix. Cheryl Allen MOORE, Administratrix v. Leo HETH.
    No. 56929.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Cheryl Allen Moore, Administratrix and Mrs. Edgar Allen applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 316 So.2d 764.

Denied. No error of law.


text:
    Helen Stevens, wife of and Kenneth STEVENS, Jr. v. GULF AMERICAN FIRE & CASUALTY CO. et al.
    No. 56939.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Helen Stevens, wife of, and Kenneth Stevens, Jr. applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany, 317 So.2d 199.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    STATE of Louisiana v. Donald G. PARKER and Gary Swayze.
    No. 56940.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Donald G. Parker and Gary Swayze, applying for writ of review, prohibition and mandamus.

Writ refused. On the allegations made and evidence of record, there is no legal basis for disturbing the conviction.


text:
    William R. DRUILHET, Individually, et ux. v. Dr. Paul COMEAUX et al.
    No. 56946.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: William R. Druilhet, Individually, et ux, applying for Certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 317 So.2d 270.

Writ denied. The result is correct.


text:
    Donald R. COLLINS v. A. Jerry SLOCUM et al.
    No. 56947.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: St. Paul Fire and Marine Insurance Company, et al, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 317 So.2d 672.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    Donald R. COLLINS v. A. Jerry SLOCUM et al.
    No. 56948.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: A. Jerry Slocum, Gwin LeBlanc and J. Harrison Henderson, III applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 317 So.2d 672.

Writ refused. On the facts found by the court of appeal, the result is correct.


author: SUMMERS, J.,

text:
    Irene Williams, wife of James WILLIAMS v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS and Dr. Stephen A. Abshire.
    No. 56950.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Charity Hospital of Louisiana at New Orleans applying for Writs of Certio-rari, Prohibition, Mandamus or Review.

Writ denied. There is no error of law.

SUMMERS, J.,

is of the opinion the writ should be granted and adheres to the view expressed in Jobe v. Hodge, 253 La. 483, 218 So.2d 566 (1969).


text:
    STATE of Louisiana v. Claudette CASBON.
    No. 56955.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Claudette Casbon applying for writs of certiorari, prohibition and mandamus.

Writ refused. The questions presented are factual, and were resolved by the trial judge adversely to the defendant. The showing made does not warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Dale SEALS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56962.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Dale Seals applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Roy F. PELTIER v. Hon. Robert E. JOHNSON, Judge, and C. Murray Henderson, Warden, Defendant, et al.
    No. 56960.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Roy F. Peltier applying for Writ of Habeas Corpus and/or Remedial Writs.

Writ denied. The showing made does not warrant the exercise of our supervisory or original jurisdiction.


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Jewel SPOTVILLE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56964.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Jewel Spotville applying for Writ of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. The facts do not support the charge of incompetent counsel.

TATE, J.,

concurs. The facts referred to in the majority’s per curiam are primarily those contained in our record of the appeal from the conviction, La., 308 So.2d 763.


text:
    Melvin H. DENNIS v. LOUISIANA STATE DEPT. OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION.
    No. 56972.
    Supreme Court of Louisiana.
    Oct. 29, 1975.
   In re: Melvin H. Dennis, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 317 So.2d 652.

Writ denied. The judgment of the court of appeal is correct.

SUMMERS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Clarence “Bill” McCORD.
    No. 57052.
    Supreme Court of Louisiana.
    Oct. 30, 1975.
   In re: Clarence “Bill” McCord applying for Writ of Mandamus, Prohibition, Certiorari and Habeas Corpus.

Writ denied in part, granted in part. Defendant’s plea of May 16, 1975 is set aside. Defendant is ordered retained in custody to be rearraigned.


text:
    Helen HICKMAN v. Mildred FLETCHER, Petition for Judicial Commitment.
    No. 56938.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Mildred Fletcher applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Grant. 317 So.2d 219.

Writ denied. The judgment of the court of appeal is correct.


text:
    STATE of Louisiana ex rel. Michael HERBERT v. Hon. Frank SHEA, Judge, Criminal District Court, Section “G”.
    No. 56965.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Michael Herbert, applying for writ of mandamus.

Granted. Considering the present and previous applications, the trial court is ordered to file the transcript of appeal in this court within 30 days, or show cause to the contrary within 5 days.


text:
    J. A. PICKETT, Sr. v. Ray TAYLOR.
    No. 56974.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: J. A. Pickett, Sr., applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 316 So.2d 778.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Joseph H. TAYLOR, Jr. v. Mary Rose CASTILLE et al.
    No. 56982.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Joseph H. Taylor, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 318 So.2d 106.

Writ denied. No error of law.


text:
    CAUSEWAY LAND COMPANY, INC. v. Marion H. KARNO and Jacob L. Karno.
    No. 56985.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Causeway Land Company, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 317 So.2d 661.

Writ denied. There is no error of law in the judgment complained of.


author: MARCUS, J.,

text:
    UNITED STATES FIRE INSURANCE COMPANY v. Gloria B. LAWSON.
    No. 56984.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: United States Fire Insurance Company, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 317 So.2d 217.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.

MARCUS, J.,

concurs in denial of this writ but is of the view that this Court should reconsider its holding in Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1969) or the matter addresses itself to the legislature for the purpose of creating a new prescriptive period for an insured to bring an action against his insurer under the uninsured motorist provision or for the insurer to bring suit against the uninsured motorist.


text:
    Frederick J. HERZOG v. Nuria Badilla, wife of/and Jamie BADILLA, and Liberty Mutual Insurance Company.
    No. 56988.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Frederick J. Herzog, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 317 So.2d 213.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Douglas RITTER v. Sherman WASHINGTON.
    No. 56990.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Douglas Ritter, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 317 So.2d 204.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    STATE of Louisiana v. Clarence Bill McCORD.
    No. 57037.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: State of Louisiana applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied. We find no abuse in the trial judge’s exercise of his discretion.

SANDERS, C. J., is of the opinion that the writ should be granted.

SUMMERS, J.,

is of the opinion this Court is denying an opportunity for review of the controversial and 4-3 decision in State v. Prieur, 277 So.2d 126 (La.1973) and State v. Moore, 278 So.2d 781 (La.1972). Moreover, the later decision in State v. Frezal, 278 So.2d 64 is controlling here and the distinction of the trial judge is not supported by reason or logic.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. Ernest YORK.
    No. 57053.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Ernest York, applying for Supervisory Writs and Stay Order.

Writ denied. The ruling is correct. (Code of Criminal Procedure, Art. 296).


text:
    STATE of Louisiana ex rel. Frederick DUDLEY v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 57026.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Frederick Dudley, applying for writ of habeas corpus.

Writ denied. According to advice received from the District Attorney the charges involved will be Nolle Prosequied. The matter is therefore moot.


text:
    STATE of Louisiana ex rel. Frank Charles WILLIAMS v. DISTRICT JUDGE, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION “A”.
    No. 56993.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Frank Charles Williams, applying for writ of mandamus.

Writ denied. On the merits of the application, (1) prior to the plea of guilty the applicant was determined competent by virtue of a lunacy commission; (2) The prosecution was timely instituted, see La.R.S. 15:7.1 (Act 25 of 1960).


text:
    STATE of Louisiana ex rel. Michael CHRISTOPHER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56992.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Michael Christopher, applying for writ ui mandamus.

Writ denied. On these facts, applicant is not entitled to the relief prayed for.


text:
    STATE of Louisiana ex rel. Bennie J. HUDGENS v. Hon. Edwin R. HUGHES, 28th Judicial District Court and C. Murray Henderson, Warden, Louisiana State Penitentiary.
    No. 57009.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: Bennie J. Hudgens, applying for remedial writs of Mandamus, Prohibition, Injunctive Relief and/or Habeas Corpus.

Writ denied. Transcript sent to this Court by error is being forwarded to applicant this date.


text:
    STATE of Louisiana v. George FINE.
    No. 57016.
    Supreme Court of Louisiana.
    Oct. 31, 1975.
   In re: State of Louisiana, applying for writ of certiorari, mandamus and prohibition.

Not considered. The application was not filed within the time fixed by the trial judge.


text:
    Charles Darwin SLATER v. Idabelle Cloutman, wife of Charles Darwin SLATER.
    No. 57042.
    Supreme Court of Louisiana.
    Nov. 5, 1975.
   In re: Idabelle Cloutman, wife oi Charles Darwin Slater applying for Stay Order and Writs of Prohibition and Cer-tiorari.

Writ Granted. Case is remanded to the court of appeal for it to hear and determine the issues of venue and jurisdiction at the same time as it hears the expedited appeal on custody.

SUMMERS, J., is of the opinion the writ should be granted without remand.


author: WATSON, Judge. BEER, Judge

text:
    Stephen L. CARTER, et al., Plalntiffs-Appellants, v. SUCCESSION of Orlando B. CARTER, Defendant-Appellee.
    No. 5169.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Granted Jan. 7, 1976.
    Jones & Jones, by J. B. Jones, Jr., Cameron, for plaintiffs-appellants.
    Stockwell, St. Dizier, Sievert & Viccellio by Oliver P. Stockwell, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   WATSON, Judge.

At issue in this lawsuit is the interpretation of the will of the late Orlando B. Carter, whose succession is the defendant. The olographic will was admitted to probate by decedent’s surviving wife, Tavia Carter, born Rutherford, who appears herein as the succession representative. She contends that the will makes her the particular and universal legatee and entitles her to ownership of all decedent’s property. She is opposed by plaintiffs, who are decedent’s brothers and sisters. The trial court rendered judgment sustaining the widow’s position.

Decedent’s six surviving siblings, Mrs. Vida Carter Doxey, Stephen L. Carter, Harold D. Carter, W. H. Carter, Ethel E. Carter and Mrs. Bertha Carter Clifton, filed a petition claiming that the will did not dispose of the separate estate of Orlando B. Carter, and that, since he left no ascendants or descendants, they, as his brothers and sisters, are entitled to one-sixth each of his separate estate. Three of these parties, Harold D. Carter, W. H. Carter and Mrs. Bertha Carter Clifton, filed a motion prior to trial to have their claims dismissed with prejudice. The other three siblings have appealed from the adverse judgment of the trial court.

The pertinent portion of the will dated December 6, 1970, is as follows :

“I do hereby bequeath unto my beloved wife, Tavia Rutherford Carter all of my interest in our home place consisting of fifteen acres more or less.
“I further bequeath all of my interests received as a legal heir from (my parents) Selika P. Carter natural mother and S. O. Carter my natural father.
“All cash, bonds, and other valuables I may possess at my death.” (TR. 13)

The appellant siblings contend that there is no legatee named in the last two paragraphs and thus that the defendant died intestate as to his separate property. The appellee widow contends that “further” in the second paragraph refers back to the first paragraph and supplies the omitted name by reference.

The trial court held that the language of the will gives a first impression of leaving the surviving wife all of the property mentioned in the will and that this was the intention of the testator.

The parties agreed that the court would interpret the will on its face and that no evidence would be introduced or considered. (TR. 109).

The issue, therefore, is whether an intent by the testator to leave the property mentioned in the second and third paragraphs of the will to his wife is sufficiently clear to authorize the court to supply her missing name as legatee in those paragraphs.

The general rules for the interpretation of legacies are set forth in the Louisiana Civil Code. In point here are the following:

LSA-C.C. art. 1712:
“In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”
LSA-C.C. art. 1713:
“A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.”
LSA-C.C. art. 1715:
“When, from the terms made use of by the testator, his intention cannot be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.”
LSA-C.C. art. 1717:
“If it can not be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least.”

The trial court relied on the rule enunciated in Succession of Bobb, 41 La. Ann. 247, 5 So. 757 (1889) that a will is to be interpreted according to the first and natural impression derived from reading it. The first and natural impression, in our opinion, does not mean the result of a casual reading, overlooking the omission of a legatee’s name in the second paragraph; we construe this rule to mean the result of a deliberate reading with full appreciation of the words used (or not used).

An equally strong rule is that a court interpreting a will cannot supply for the testator something he has omitted.

“Construction must not be placed upon wills so as to put in the mouth of the testator that which he refrained from saying.” Maguire v. Maguire, 110 La. 279, 34 So. 443 (1903).

While a will must be interpreted in the sense that will give it effect, if that be legally possible, a court cannot make a will for a person deceased or give effect to a will through a method other than that set up by the testator. Succession of Canton, 144 La. 113, 80 So. 218 (1918).

It is contended by the wife that the word “further” is used in the sense of “in addition” and means here that the wife is left the other things enumerated. No Louisiana case being directly in point, the Illinois case of McKie v. Collinson, 292 Ill. 458, 127 N.E. 92 (1920), is cited as authority for this interpretation. A distinction noted between that case and this is that the word “further” appeared in the same paragraph as the preceding bequest in that case. Another and stronger distinction is that the McKie will used the phrase “I give to my” and the word “wife” was obviously omitted; the testator had just used the identical phrase in the preceding sentence where he had given something to his wife. In the present case, Carter said only “I further bequeath” and he did not say to whom.

Our reading of this will indicates that the word “further” could possibly mean that the testator, in addition to the home place which he left his wife, was indicating what else comprised his estate, with no indication of whom was to receive it.

The will is thus ambiguous. The testator made a specific bequest to his wife of the “home place”. He may have known that the separate property which he left in the second paragraph would go by operation of law to his brothers and sisters and that the community property mentioned in the third paragraph would go by operation of law to his wife. This construction is quite as reasonable as the other. This interpretation does not render any portion of the will void and does not have the defect of supplying what the testator may or may not have omitted in the second and third paragraphs. We cannot provide by conjecture what the testator omitted and must interpret the will as it is written. If the testator intended to leave everything to his widow, the language enumerating his estate becomes meaningless. An unanswered question which militates against finding an intention to leave everything to the widow is: if that was his intent why did he not say so; why did he list his property ?

Applicable is the rule of Succession of Montegut, 217 La. 1023, 47 So.2d 898 (1950):

“ . . . that in case of doubt, that interpretation should be preferred which will approximate closest to the legal order of distribution.” 47 So.2d 900

For the reasons assigned we find that the trial court erred as a matter of law in dismissing appellants’ claim. We find that the appellants are entitled to an order to be entered by the trial court recognizing their status as heirs of Orlando B. Carter, as provided by law, and limiting the execution of his last will and testament to the provisions of the first paragraph thereof. The judgment of the trial court dismissing appellants’ claim is reversed and the case is remanded for further proceedings according to law.

Costs are taxed against Tavia Carter.

Reversed and remanded.

BEER, J., concurs and assigns written reasons.

BEER, Judge

(concurring):

I respectfully concur. The majority correctly states the issues and I agree with the conclusions reached under the existent state of the record. However, I am troubled by the stipulation of both counsel which totally restricted the trial court’s ability to consider such extrinsic evidence as may have been available to ascertain, if possible, the intent of the testator. See LSA-C.C. Art. 1715 and Succession of Cardone, La.App., 271 So.2d 338, writ denied La., 273 So.2d 300; Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1.