author: YELVERTON, Judge.

text:
    Brenda Gail Savage DUPUY, Plaintiff-Appellee (Defendant in Rule) v. Ronald James DUPUY, Defendant-Appellant (Plaintiff in Rule).
    No, 82-222.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Rodney M. Rabalais, Marksville, for defendant-appellant.
    Charles A. Riddle, III, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Ronald James Dupuy filed a rule to terminate child support payments and to enforce child visitation privileges and for contempt against his former wife, Brenda Gail Savage Tarpley. From the dismissal of this rule, the plaintiff in rule husband has appealed.

The sole issue raised on appeal is whether the trial court abused its discretion in failing to modify the prior child support award.

The parties were married in 1973 and divorced on May 16, 1980. Two children were born of the marriage. The judgment of divorce ordered the father to pay the mother $100 per month per child for the support of the two minor children and to pay all medical, dental and pharmaceutical bills incurred by the children. On October 9,1980 the father filed a rule for suspension of the payments of child support alleging he had been totally disabled since June 18, 1980. A hearing was held on October 21, 1980 and a judgment was rendered ordering that one half of the child support payments be suspended for a period of six months beginning November 1.

On February 11,1982 the father filed the present rule to terminate the child support payments. The basis for this rule — the disabling accident of June 1980 — was the same as that which had resulted in the Octobér 1980 suspension of half of the support payments. A hearing was held on March 5. The rule was dismissed on March 9, 1982.

The uneontradicted testimony of Dupuy revealed the following facts: In June 1980 Dupuy suffered a work related accident while working for ODECO resulting in injuries to his back with damage to his central nervous system. He was unsure as to the extent of his injuries and was being treated by Dr. Bertuccini in Lafayette, Louisiana. Dupuy had previously broken his neck in another accident in 1979. Since the 1980 accident Dupuy has attempted to work on several occasions but has been unable to work because of his injuries and was advised by his doctor not to work until surgery has been performed. Dupuy was living with his mother at the time of the hearing and has been receiving $56 per week maintenance and cure from his former employer since January 1982. Such amount is insufficient for him to live on and his mother has been helping with his expenses. Dupuy had no other source of income. Dupuy had a suit pending in federal district court against his former employer.

The record reveals also that a summary hearing was supposed to be held before a federal magistrate two weeks after the hearing on this rule for the determination of whether Dupuy was entitled to compensation benefits prior to January 1982.

A trial court has considerable discretion in determining whether to modify child support awards and such determination will not be reversed except for an abuse of that discretion. Baer v. Simon, 334 So.2d 796 (La.App. 3 Cir.1976).

Under LSA-C.C. Art. 232 the discharge from or reduction of the alimony owed for the support of children may be sued for and granted “when the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part ...” Therefore one seeking a modification of an award for child support must show a change in the circumstances of the recipients or of the person obligated to pay. Walker v. Walker, 395 So.2d 433 (La.App. 3 Cir.1981). However, it is not every change in circumstances of the person obligated to pay which warrants a modification. As the court stated in Moore v. Moore, 380 So.2d 180 (La.App. 2 Cir. 1980):

“The support obligation imposed on the father and the mother of minor children by CC Art. 227 is firmly entrenched in our law and is a matter of public policy. Neither equity (CC Art. 21) nor practical inability to pay (CC Art. 232) overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Laiche, [237 La. 298, 111 So.2d 120] supra. See also Halcomb v. Halcomb, 343 So.2d 1183 (La.App. 3d Cir.1977); Baer v. Simon, 334 So.2d 796 (La.App'. 3d Cir.1976); Tablada v. Tablada, 356 So.2d 1031 (La.App. 1st Cir.1977); Shows v. Shows, 345 So.2d 975 (La.App. 2d Cir.1977), cert. denied; Theriot v. Melancon, 311 So.2d 578 (La.App. 3d Cir.1975).
“In the absence of a fortuitous change in circumstances authorizing a reduction in child support, a parent even in financial straights, is obligated to support the legitimate needs of his or her children during their minority. Halcomb, supra.

In the present case the uncontradict-ed testimony of the father did establish a change in his financial circumstances. He was involved in an accident in June 1980 disabling him to the extent that he has been unable to work. His only source of income was the $56 per week check for maintenance and cure. He had minimized his expenses by living with his mother who aided in his support. We feel that such a fortuitous change in circumstances, although not authorizing a complete discharge of his obligation to support his children, does warrant a reduction of the prior child support award.

Reasons for its decision were not given by the trial court. However, the trial judge participated in the questioning of plaintiff in rule and from the nature of these questions we can detect that the court below probably rested its decision on one of two considerations. First, the court appears to have been under the mistaken belief that its suspension order was still in effect, and that the father was under an existing obligation to pay only $50 a month per child. If this had been the case, we would agree that no further reduction is warranted. Actually, however, the suspension period had expired for almost a year. The other ostensible reason for his denial of termination, or at least a reduction (assuming he became aware later in the trial that the suspension period had terminated and that $100 a month per child was currently due) was his expectation that the father would soon come into some money from his lawsuit. There was testimony by the father, in response to the court’s questioning, that he was anticipating a good settlement from his personal injury suit against his employer and that there was to be a summary hearing on whether he was entitled to back compensation benefits. If the latter was the basis for the decision, then that is conjectural and should not have been taken into account.

Whatever the reason, we find that the trial judge was in error in failing to reduce the prior award. Under the circumstances of this case we find a reduction of $50 per child to be reasonable. It may be that at some future date the financial circumstances of the father will change and at that time the mother is free to file a rule for an increase in child support.

For the reasons assigned the judgment appealed from is amended so as to reduce the award of child support from $100 per month per child plus medical, dental and pharmaceutical payments to $50 per month per child plus medical, dental and pharmaceutical payments. In all other respects, the judgment appealed from is affirmed. Defendant in rule, Mrs. Tarpley, is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . Due to a recording malfunction or a defect in the tape, part of the testimony of Mr. Dupuy was not recorded. Pursuant to LSA-C.C.P. Art. 2132 counsel for the parties have stipulated as to the substance of this testimony for purposes of this appeal.

      . (Questions by the court):
      “Q. First of all, you came to court, not too long ago, in October, I believe, and you had your child payments — the regular payments suspended and a lesser amount inserted for six months, is that correct?
      “A. Yes, sir.
      “Q. All right, you’re now suppose to be paying fifty dollars per month per child, is that correct?
      “A. That’s correct.”

      . Until there is a settlement or a final judgment such anticipated financial ability should not be considered in the determination of the child support award. In Bernard v. Bernard, 300 So.2d 499 (La.App. 3 Cir.1974), this court found testimony as to anticipated losses of a corporation conjectural and failed to consider such testimony in its determination of whether the trial court committed manifest error in its child support award.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    William MECHE, Defendant-in-Rule-Appellant, v. Justine Bruner GRAHAM, et al., Plaintiffs-in-Rule-Appellees.
    No. 82-157.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Shelton & Legendre, T. Robert Shelton, Lafayette, for plaintiffs-appellants.
    J.W. Landry, Jr., Crowley, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a rule seeking a mandatory injunction ordering removal of a fence. It was filed by the defendants in a pending petitory action against the plaintiffs in that action and others who allegedly disturbed the possession of the defendants in the peti-tory action. We will designate the parties as they stand in the rule to show cause, plaintiffs-in-rule as plaintiffs, and defendants-in-rule as defendants. The trial court granted the injunction sought by the plaintiffs and ordered removal of the fence. Defendants appeal.

The questions raised are: (1) Did the trial court err in granting injunctive relief in a petitory action? (2) Even if injunctive relief is appropriate in this case, did the district court err in holding the plaintiffs had such possession of the property in question as is necessary to entitle them to injunctive relief?

FACTS

In 1973, William Meche filed a petitory action against his neighboring landowners to the north, Justine Bruner Graham, the Jack Bonin Estate, and the heirs of Jack Bonin (hereinafter the Bonins), claiming ownership of a strip of land. This strip of land lies just north of an old fence line and tree line which had previously been accepted as the boundary between the two properties. However, the petitory action has never come to trial.

Mr. Meche is now deceased. After his death, the defendants in this rule went upon the property in question and placed surveyor’s stakes some 45 to 55 feet north of the old boundary line. The defendants stated that they placed the stakes on levees which had been prepared by plaintiffs for planting of the 1980 rice crop. There was some dispute as to the exact date on which this was done, the defendants testifying that it was done in December of 1979, and the tenant farmers of the property testifying that they did not see the 'stakes until the first time they flooded the 1980 crop, in late March at the earliest.

The plaintiffs left the stakes where they were, and the tenants merely went around them when they harvested their crops. Then in January, 1981, on the same lines on which the stakes were placed, the defendants erected a fence of steel posts and barbed wire. The plaintiffs thereupon filed this rule for a preliminary injunction to restrain the defendants from interfering with their possession of the property, and for a mandatory injunction ordering the defendants to remove the new fence and replace the parts of the old one which had been torn down.

The trial court overruled the defendants’ exception to the use of summary process and the exceptions of no cause and/or right of action in a hearing held in March, 1981. The rule for injunctive relief was heard on September 10, 1981. After taking the matter under advisement, the trial court rendered judgment in favor of the plaintiffs-in-rule, granting their request for an injunction restraining the defendants from interfering with plaintiffs’ possession of the disputed strip of property and ordering removal of the new fence and restoration of the old one. From this judgment, the defendants appeal, arguing that injunctive relief was improper in a suit such as this and that, even if an injunction were proper relief, the plaintiffs failed to prove the requisite possession of the property to entitle them to an injunction.

INJUNCTIVE RELIEF

The defendants-in-rule contend the plaintiffs-in-rule are not entitled to injunctive relief because injunction is not an available remedy in a petitory action. As authority for this position, we are cited to Eshleman v. Duracher, 325 So.2d 688 (La.App. 1st Cir.1976). That case was originally a pos-sessory action by the plaintiff which was converted into a petitory action by the re-conventional demand of the defendant. The First Circuit dissolved the injunction granted by the trial court against interference with the plaintiffs’ possession, reasoning that since the case had been converted to a petitory action, the relief provided by LSA-C.C.P. article 3663 was thus unavailable to the plaintiff there.

LSA-C.C.P. article 3663 provides, in pertinent part, as follows:

“Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.”

It is stated in the Official Revision Comments of that article that the purpose is to make injunctive relief available in two separate and distinct types of cases:

“(1) as an ancillary remedy in a posses-sory action; and (2) as the relief to be granted in an injunction suit brought to enjoin trespassers and other disturbers, and which is neither a possessory nor a petitory action. See Churchill Farms v. Gaudet, 184 La. 984, 168 So. 123 (1936).”

As pointed out by the trial court in his written opinion, this article thus provides the means of protecting the possessor’s interest in property which is the subject of the possessory action which he has instituted. The purpose is to preserve the status quo during the pendency of the action. The reason injunctive relief is unavailable in a petitory action is that the bringing of the action is an admission by the plaintiff that he is not in possession of the property, and an injunction in the plaintiff’s favor would allow circumvention of the burden of proof of ownership.

The instant situation was accurately described by the trial court when it stated in its written opinion:

“The Court is being asked by the defendants in a petitory action to enjoin plaintiffs from pursuing a self-help method during the pendency of the action on the merits. The plaintiffs in rule/original defendants appear to be merely attempting to maintain the status quo at the time the original lawsuit was instituted.”

Those who have established the right to possession of property are entitled to be maintained in possession unless and until the issue of ownership has been heard and decided. Injunctive relief is the means by which this end may be accomplished. See Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir.1959).

The defendants initiated the petito-ry action which they contend deprives the plaintiffs of the injunctive relief sought. Inherent in the petitory action is the admission that the plaintiffs are not in possession of the property. This action was not pursued. They then took matters into their _ own hands, constructed a new fence to in-elude the disputed property and tore down the old fence. Now they argue that the plaintiffs-in-rule have no right to enjoin them from pursuit of such self-help methods, frowned upon by the laws and the courts of this state. We cannot agree with such a contention. To so hold would defeat the purpose of LSA-C.C.P. article 3663 upon which this suit is grounded, by allowing either party in a property dispute to defeat the others request for an injunction merely by converting to a petitory action. We affirm the trial court’s holding on this issue.

POSSESSION

Defendants-in-rule next contend that, even if injunctive relief is available to the plaintiffs-in-rule, they are not entitled to enjoin the defendants and have the new fence removed because plaintiffs-in-rule were not in uninterrupted possession of the strip of land for a year before the erection of the fence.

A party relying on LSA-C.C.P. article 3663 must have possession of the property for one year prior to the disturbance and suit must be brought within one year of the disturbance. Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1st Cir.1980), writ denied 394 So.2d 615 (La.1980). The defendants argue that their erection of surveyor’s stakes disturbed the possession of the plaintiffs, and since plaintiffs did not file this rule until more than one year after the initial disturbance, the plaintiffs did not have possession as required by the law on possession.

The question of whether the acts of the defendants were sufficient to usurp the Bo-nins’ right to possess the property is a factual determination to be made by the trier of fact, and not to be disturbed on appeal unless it is clearly wrong. Arceneaux v. Domingne, 365 So.2d 1330 (La.1978); Ryan v. Pekinto, supra.

There is no doubt that the Bonins had corporeal possession of the disputed property through their agricultural tenants for many years. While there was conflicting testimony as to when the defendants placed the surveyor’s stakes on the property, the trial court assumed the stakes had been in place for 13 months when the fence was erected and the suit was filed.

It is well established that the quality of possession required to entitle one to bring a possessory action, or also effectively usurp another’s right to possession, depends on the type of land in dispute. Liner v. Louisiana Land & Exploration, 319 So.2d 766 (La.1975). The trial court held that the mere placing of the surveyor’s stakes was not sufficient to usurp the plaintiffs’ corporeal possession exercised by continued cultivation. The court felt that this was not sufficient activity to put the Bonins on notice that their dominion over this property was being challenged. We agree.

The testimony of the tenant farmers established that these stakes did not interfere with their farming. They continued to go right up to the old line and the Bonins received that crop money attributable to the strip in dispute for the 1980 crop year. There was no actual disturbance of the plaintiffs’ possession of the property until erection of the fence.

The defendants cite Olin Kraft, Inc. v. Allen, 333 So.2d 250 (La.App. 2d Cir.1976) to support the argument that surveying the property and marking boundaries is sufficient to dispossess one party and begin the possession of another. However, that case involved wood land, not farm land as we have here. More activity is required to denote a challenge to the possession of land being farmed than the possession of wood land. Furthermore, Louisiana courts have been fairly consistent in holding that surveying and acts preparatory to it are insufficient to interrupt another person’s corporeal possession. See Pitre v. Tenneco Oil Company, 385 So.2d 840 (La.App. 1st Cir. 1980), writ denied 392 So.2d 678 (La.1980) and cases cited therein.

We find that the trial court’s holding that the Bonins were in possession of the property in dispute up until erection of the fence, and that the placing of surveyor’s stakes was insufficient to disturb the plaintiffs’ possession of the property is not clearly wrong. It will therefore not be disturbed on this appeal. Thus, the plaintiffs brought suit within a year of the initial disturbance of their possession — building of the fence— and are entitled to be restored to peaceful possession of the property in dispute.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-in-rule-appellants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Carol I. THORNTON, Plaintiff-Appellee, v. Michael PEDERSEN and Deborah Pedersen, Defendants-Appellants.
    No. 82-161.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      C.A. Miller, Jr., Lake Charles, for defendants-appellants.
    Kimball, McLeod & Dow, Robert L. Dow, Lake Charles, for plaintiff-appellee.
    Codings & Codings, Robert L. Codings, Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

This is an action in quanti minoris for certain alleged defects in a house purchased by plaintiff, Carol I. Thorton, from defendants, Michael and Deborah Pedersen. Plaintiff sought reduction of the sale price by the amount necessary to repair the following alleged defects:

1. The roof leak and the cost of its repair_$ 500.00
2. A sinking foundation and the cost of jacking up and releveling the house_$ 750.00
3. A malfunctioning septic system and the cost of its replacement _ - 2,800.00
4. Incomplete bathroom vents, and the cost of their extension through the roof_ 300.00
5. Improper connection of drain pipes under the house and the cost of proper connections_ 350.00

The plaintiff also asked for attorney’s fees in the amount of $1,500.00 and damages for mental anguish in the amount of $2,500.00. Defendants denied any defects, reconvened for damages for being sued in the sum of $5,000.00 and attorney’s fees in the sum of $3,500.00, and third-partied Cooley’s Building Supply, Inc. and Leo Romero concerning the roof leak, the sinking foundation and the incomplete bathroom vents.

The trial court rendered judgment in favor of the plaintiff reducing the sale price by the amount of $3,432.64 which was itemized in reasons for judgment as $500.00 for the repair of the roof; $2,800.00 for replacement of the septic system; and $132.64 as proved expenses for repair to the septic system. Judgment by default was rendered in favor of defendants, third party plaintiffs, against Cooley’s Building and Supply, Inc., in the amount of $500.00. Their third party claim against Leo Romero was dismissed. All other demands were denied.

Defendants appealed suspensively seeking reversal or alternatively reduction in the amount awarded plaintiff and reversal of the judgment dismissing their demands against Leo Romero. Neither plaintiff nor the third party defendant appealed or answered the appeal.

The following issues are presented by the appeal of the defendants:

(1) Did the roof leak because of a defect in construction which existed at the time of sale?

(2) Was the septic system servicing the house so defective as to entitle plaintiff to a reduction of the purchase price, and, if so, was this defect made known to the plaintiff prior to the sale?

(3) Was the award for the replacement of the septic system excessive?

(4) Is the carpenter who did the work on the roof liable to the defendants (third party plaintiffs) for the cost of repair?

FACTS

The Pedersens owned a home located in Old Town Bay subdivision fronting on Old Town Road, Calcasieu Parish, Louisiana. The main part of the house is over 50 years old. They lived in the house six years and made an addition to the house after the fourth year and replaced the sewer system. The Pedersens contracted with Cooley’s Building Supply, Inc. (hereafter Cooley’s) for construction of the addition consisting of another bedroom, enlargement of the den and installation of a fireplace. Leo Romero did the carpentry work on the addition.

On March 27,1978, the Pedersens sold the house to Ms. Thornton.

THE ROOF LEAK AND THE COST OF ITS REPAIR

In August, 1978, within five months of the sale, a leak developed in the front part of the living room where the old portion of the ceiling joined the new portion. The roof continues to leak from time to time. No one contests that the roof leaks. A leaking roof is a defect such as entitles the purchaser to demand a reduction of the price. Hunter v. Wilson, 355 So.2d 39, 42 (La.App. 3rd Cir.1978) and cases cited therein.

The question is whether the leak was due to a defect in construction which existed at the time of the sale.

Appellants contend that the court erred in holding that the leak in the roof was caused by a “sink” which was a defect in construction. They contend that the evidence established that the leak was caused by the decayed condition of the roof due to the accumulation of leaves and debrfc on the roof, which occurred subsequent to the sale to Ms. Thornton. To support this theory, defendants rely on the opinion of two young carpenter-contractors, a Mr. Miller and a Mr. Powell. Miller and Powell inspected the roof about two weeks before trial, three years after the first leak appeared. They were unable to detect a “sink” but found an accumulation of leaves and debris in the valley and concluded that this caused rotting of the roof and explained the leaks.

On the other hand, the plaintiff’s expert, the Rev. M.J. Bruney, is a carpenter-contractor with over forty years experience, who examined the roof approximately one year after the first leak appeared. He testified that he found imperfect workmanship in the construction of the roof, in that the attachment of the short and long rafters caused what he described as a “sink” and that the sheeting under the roof had not been carried straight. It was his opinion that during heavy rains and under certain wind conditions, the water would go under the shingles and flashing, and onto the felt .and stay long enough to cause seepage through the roof.

In his reasons for judgment, the trial judge stated that he was impressed by the expertise and impartiality of Rev. Bruney, whereas the defendants’ experts, Mr. Miller and Mr. Powell, were relatively inexperienced. Considering the time of the inspections, the expertise and the credibility of these experts, the court favored the opinion of Rev. Bruney.

The record establishes that this finding is not clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir.1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975). Indeed, we find that the record clearly supports the trial judge’s conclusion that there was a defect in the construction of the roof which existed at the time of the sale.

Defendants assert, however, that the court erred in allowing plaintiff to establish cost of repair on redirect examination over objection of counsel. We find no merit in this contention. The record indicates that testimony establishing the cost of repairs was first made without any objection by defendants. In any event, in view of the power of the trial court over proceedings, provided in LSA-C.C.P. Articles 1631 and 1632, there was no error in the admission of this evidence on redirect examination. Wallace v. Pan American Fire & Cas. Co., 352 So.2d 1048, 1055 (La.App. 3rd Cir.1977), writs refused, 354 So.2d 209 (La.1978).

In its reasons for judgment, the trial court stated as follows:

“No evidence was offered regarding the cost of repair of the ceiling. The only item claimed was $500.00 for the repairs to the roof. Rev. Bruney did not make a detailed repair estimate but he was certain that as of the time of his inspection, the very minimum that it would cost in materials and labor to repair the roof was $500.00.”

We will affirm the trial court award for roof repairs.

THE SEPTIC SYSTEM AND ITS REPLACEMENT

In 1975, at the time that the Pedersens added on to their home, Mr. Pedersen and his brother installed a new septic system. This system consists of a 600 gallon septic tank and about 200 feet of field lines which run in an “L” shaped fashion.

Approximately one year prior to selling the house to Ms. Thornton, the Pedersens tried to sell the house to a friend who intended to use FHA financing. Among other things, FHA required that a soil percolation test be run. At the request of Mr. Pedersen, a percolation test of the soil was conducted by a sanitarian with the Calca-sieu Parish Health Department. He left a copy of his report with the Pedersens indicating that there was poor absorption due to clay or inadequate drainage and that the use of field lines was unacceptable. Because of this and other reasons, the sale could not qualify for FHA financing. In spite of the above, the record reflects that the system installed by Pedersen and his brother worked well throughout the time of defendants’ occupancy and was in working order at the time of the sale to Ms. Thornton.

Soon after the sale to Ms. Thornton, she experienced sluggishness with flushing of the commode and draining of water from the bathtub. In November of 1978, the commode overflowed and the contents backed up into the bathtub. A plumber had to be called. Again in January of 1979, a plumber had to be called. At this time, the system had completely broken down and a hole had to be cut in the line and left open to relieve pressure so that Ms. Thornton could utilize her commode and bathtub. This created sanitation and odor problems.

In its reasons for judgment on the septic system problem the trial court stated as follows:

“The ultimate failure of the system was explained by the experts as caused by a combination of three factors. The first is the lack of porosity of the soil. It is heavy clay. Two percolation tests by the Calcasieu Sanitation office show that the soil does not meet minimum standards of porosity and the system cannot be approved. The second factor is the poor drainage condition of this lot. The third is that the field lines are too deep in the ground.
Amilcar Torres, Chief Sanitation officer for Calcasieu Parish, was an impressive witness, and he backed up the testimony of other experts that these were the problems.
The defense says that the system was working and therefore not defective at the time of the sale. Defendants urge that the mere fact that this system could not be approved under the Louisiana Sanitation Code (one percolation test by the Parish health authorities was conducted in 1977, one year before this sale), is not proof of a redhibitory defect. The Court agrees. Merely because a system does not meet the requirements of a government standard, or code, does not mean that it is unsuitable for its intended purpose. Slack v. Inglehart, 386 So.2d 967 (La.App. 3rd Cir.1980). However, this case is not applicable where the underly ing defect which accounts for the failure of the system to pass a governmental test is the same to which the failure of the system to operate is attributable. Here, one of the several problems that caused this system to quit working is the nonporous nature of the soil.
Another defense is that other similar systems in the neighborhood are continuing to work well although in the same type of soil. This phenomenon was explained by the experts. They declared that a system might work for years despite poor soil conditions, but that once it breaks down it is more than likely due to poor soil conditions and drainage problems, and that for this type of soil an oxidation pond is recommended.
The court accordingly concludes that the proof is sufficient to establish that the septic system suffered from a redhibi-tory defect which became apparent within a reasonable time after the sale under circumstances sufficient to establish that the defect existed at the time of the sale, and the plaintiff is entitled to a reduction of the price, measured by the replacement cost."

We agree with the trial court’s reasons for judgment and its conclusion that the septic system suffered from a redhibi-tory defect which existed at the time of sale.

Defendants next contend that the trial court found that the defect in the septic system was made known to the buyer before the sale, and that such finding is inconsistent with its ultimate conclusion that plaintiff is entitled to a judgment in quanti minoris. In this regard, appellants point to the trial court’s finding that plaintiff was made aware of the result of the 1977 percolation test.

It is true that in deciding the issue of attorney’s fees the trial court did state that it did not believe the plaintiff had borne her burden of proving that the defendants neglected to tell her about the percolation test. However, even though plaintiff had knowledge of the results of the percolation test, this was not equivalent to knowledge that the system was defective. As afore-stated, when plaintiff first acquired the Pedersen house the plumbing system functioned well. It was only after some months that the defect in the system first became manifest.

In sum, we find that the record clearly supports the trial court’s conclusion that the septic system servicing the house was defective; that the defect existed prior to the sale; that the plaintiff was not aware of this defect prior to the sale; and, that the reduction is to be measured by the replacement cost of the system.

Defendants finally urge that the award to plaintiff for installation of a new septic system is excessive, in that the amount awarded includes the cost of a new tank which will be a duplicate of the tank which is presently in place.

The measure of recovery in an action in quanti minoris involving the sale of realty is the amount necessary to convert the unsound structure into a sound one. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (La.1959). On February 12, 1979, Mr. Cormier, plaintiff’s expert in the field of septic systems, estimated the cost of replacing the defective system at $2800.00. The written estimate was for a 25' X 25' X 5' oxidation pond installed according to Board of Health specifications. It included the installation of a fence, hooking up the sinks to the sewer system and the dirt to be spread in the yard. When Mr. Cormier testified at trial it was some three years later. He could not state for certain whether the estimate included the electrical work or other necessary expenses. Although he did state that $2,800.00 included the cost of a septic tank and pipe, he did not state the separate value of these items. He also stated that the cost today would probably be a good bit more.

The trial court has reasonable discretion to assess damages based upon the facts and circumstances of the case. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). This legal principle is equally applicable in a suit for quanti minoris.

In the instant case, we find no abuse of discretion. Plaintiff’s evidence clearly establishes the cost of replacing the defective system at $2,800.00. Although this cost estimate includes the cost of a new septic tank the record does not establish that the old tank would be suitable for use in the new system and, if so, the separate cost of such item. In sum, defendant has failed to provide an evidentiary basis for reduction of the award.

THIRD PARTY DEMAND

The third party claim against Romero concerns the $500.00 roof repair item only. Apparently, Cooley’s was judgment-proof and the Pedersens amended their suit to allege that Romero along with Cooley warranted the construction against defects under LSA-C.C. Article 2762. They reassert this claim on appeal.

Romero denies that he was a subcontractor in any sense of the word and asserts that he was merely a carpenter paid by the hour.

The trial judge, in his written reasons for judgment, stated:

"... the Pedersens failed to prove that Leo Romero was a sub-contractor. In fact Romero was simply a hired hand of Cooley’s Building Supply, Inc., who worked by the hour and, although he was paid directly by the Pedersens, this makes no difference in his status. Third party plaintiffs showed the court no authority for holding that a hired hand warrants the construction against defects. The third party claim against Leo Romero must be dismissed....”

The Pedersens have made no attempt to show that Romero was an independent contractor. We agree with the trial court that the facts indicate Romero was simply a hired hand.

At trial, the Pedersens offered no authority and we have found none for applying LSA-C.C. Article 2762 to a regular laborer nor do we believe this article was intended to be applied so broadly. The only jurisprudence cited by the Pedersens is the case of Schamens v. Crow, 326 So.2d 621 (La.App. 2nd Cir.1975). That case involved a contractor and is not authority for holding a laborer liable under LSA-C.C. Article 2762.

For the above and foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to defendants-appellants, Michael and Deborah Ped-ersen.

AFFIRMED.


author: BYRNES, Judge.

text:
    Kenneth C. SCULLIN Individually and on Behalf of the AMERICAN COMPANIES v. The PRUDENTIAL INSURANCE CO. OF AMERICA, Robert D. Bridgewater, et al.
    No. 13145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 1982.

      Gilbert Buras, Jr., New Orleans, for plaintiff-appellant.
    Gregory P. Dileo, Ewell E. Eagan, Jr., New Orleans, for defendants-appellees.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BYRNES, Judge.

This is an appeal from the nullification of a default judgment. We affirm.

The sequence of events leading to this appeal are as follows: On December 4,1979 an original petition was filed by Kenneth C. Scullin, appellant herein. That petition named Prudential Insurance Co., and “Richard Roe” as defendants. Service was requested only as to Prudential. On March 21, 1980 a first supplemental and amending petition was filed, identifying Robert D. Bridgewater, appellee herein, as “Richard Roe”, and praying for service of both the original and supplemental petitions on Bridgewater. On March 29, 1980 the first supplemental and amending petition, without a copy of the original petition, was served on Bridgewater. On May 7, 1980 a preliminary default was entered against Bridgewater. On June 16, 1980 a second supplemental and amending petition was filed. On June 23, 1980 this petition was served on Bridgewater, once again without a copy of the original petition attached. On June 25, 1980 Bridgewater filed an exception, styled as a dilatory exception, urging the failure of the supplemental petition to comply with C.C.P. Art. 891, and the lack of service of original petition. The exception concluded with a prayer for dismissal of the suit at plaintiff-appellant’s cost. On June 26, 1980 the second supplemental and amending petition was dismissed as to Bridgewater and the default judgment previously entered against him was confirmed. On June 30, 1980 Bridgewater moved for a new trial or, alternatively, to nullify the default judgment confirmed on June 26th. At the hearing on these motions the trial court ordered counsel for Bridgewater to file a petition for nullity. This was done on September 26, 1980. On October 10, 1980 the trial judge issued an order vacating the default judgment he had previously confirmed. It is from that order that this appeal is taken.

After a careful review of the record in this case we find that the trial judge was correct in his decision to annul the default judgment.

Article 1201 of the Code of Civil Procedure clearly states:

“Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null.”

It is un-contested that the appel-lee, Bridgewater, was never served with the original petition in this matter. He was served with a first supplemental and amending petition which incorporated the allegations of the original petition by reference, however the original petition was not annexed thereto. Appellant argues strenuously that this was sufficient to put appel-lee on notice of the claim against him. We cannot agree. The petition which was served on appellee contained no allegation which, in any way, notified him of the nature or factual basis of the appellant’s claim against him. The appellant further argues that Bridgewater had actual knowledge of the contents of the original petition prior to the service of the first supplemental and amending petition. This argument is without merit.

The law is clear that actual knowledge of the existence of an action cannot supply the want of citation. Proper citation is the foundation of all actions. It is a fundamental principle of our law that no valid judgment can be rendered in any case where the defendant has not been informed of the suit against him by citation in strict compliance with the law. See C.C.P. 2002 and 1201. Billiot v. Sea Life Inc., 384 So.2d 1023 (La.App. 4th Cir.1980), Piper v. Olinde’s Hardware & Supply Co., Inc., 276 So.2d 788 (La.App. 1st Cir.1973), National Acceptance Co. v. Alexis, 201 So.2d 21 (La. App. 4th Cir.1967).

C.C.P. Article 2002 provides in pertinent part:

“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and has not entered a general appearance, or against whom a valid judgment by default has not been taken;”

Appellant argues that the exception filed by Bridgewater on June 25, 1980 constituted a general appearance which, under C.C.P. Article 7, waived any objection to the lack of citation and service. This argument is based on appellant’s contention that the exception was based on the form of the petition and not the sufficiency of service.

The characterization of a pleading by its’ author is not controlling. Pleadings are governed by their substance and not by their caption. Higdon v. Higdon, 385 So.2d 396 (La.App. 1st Cir.1980), Weber v. Bon Marche Pharmacy, 378 So.2d 520 (La.App. 4th Cir. (1979), Louisiana Livestock Sanitary Board v. Johnson, 372 So.2d 585 (La.App. 3rd Cir.1979).

A fair reading of the exception and supporting memorandum filed by the appel-lee do not support appellant’s contention. While the exception is styled as dilatory and is couched in terms of the petition’s noncompliance with C.C.P. 891, (relating to the form and content of petitions), the clear intent of the exception is to object to the lack of citation and service of the original petition. In essence the exception urges that, because the original petition was never served on Bridgewater, the supplemental petition which was served on him is defective in that it did not set forth a statement of the object of the demand or the material facts upon which that demand was based. The first part of the exception is declinato-ry in nature, taking exception to the jurisdiction of the court over the person of the defendant. The second part of the exception is dilatory in nature, objecting to the form of the petition itself.

C.C.P. Article 928 requires that all decli-natory and dilatory exceptions be filed at the same time, prior to answer or judgment by default, or they are waived. They need not plead in the alternative and may be incorporated in the same pleading. C.C.P. 928.

While ordinarily the filing of a dilatory exception would constitute a general appearance, C.C.P. Article 7 provides that, where a declinatory exception includes a prayer for dismissal on the grounds that the court lacks personal jurisdiction over the defendant,

‘. .. the filing of the dilatory exception therewith. .. . when required by law, does not constitute a general appearance.”

As pointed out above C.C.P. Art. 928 requires that all declinatory and dilatory exceptions be filed at the same time. The appellee’s exception urges the lack of citation and service of the original petition and prays for dismissal on that basis. The law requires that any objection to the form of the petition be filed at the same time. See C.C.P. 928. This brings the present case within the exception to the general appearance rule found in Article 7.

Having found that the appellee was never served with the original petition, and that he did not make a general appearance, we conclude that the trial judge was correct in nullifying the default judgment.

All costs of this appeal to be borne by the appellant.

AFFIRMED.


author: DOUCET, Judge.

text:
    Jerry D. KIRK, Plaintiff and Appellant, v. TOWN OF WESTLAKE, et al., Defendants and Appellees.
    No. 82-201.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 22, 1982.
    Jerry D. Kirk, Lake Charles, for plaintiff-appellant.
    John L. Van Norman, III, Láke Charles, for defendant-appellee.

      Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

This is a zoning ordinance case. It was filed in the District Court, and because that court declared a city ordinance unconstitutional, it was appealed directly to the Louisiana Supreme Court pursuant to Louisiana Constitution Article V, § 5(D) (1974). That court, finding the ordinance constitutional, then remanded it back to the trial court for consideration of the possible improper promulgation of certain ordinances of the Town of Westlake, Louisiana. A similar case, with the same parties, was previously before us and disposed of as will be shown hereinafter.

Plaintiff, Jerry D. Kirk, owns a 7.4 acre tract of land in the Town of Westlake, upon which he wishes to construct a “mobile home park”. The tract of land is presently zoned for use for the construction of single or multi-family residences. Plaintiff first sought to obtain a building permit for the “mobile home park” from the Defendants in 1979. His application was refused. Plaintiff then filed suit in the Fourteenth Judicial District Court, seeking a declaratory judgment and writ of mandamus, asking that the Court compel the Town to change the zoning classification of his property. The trial court ruled the Town’s action to be incorrect and the Town then appealed. This court held that the Town was correct in denying Plaintiff’s application for re-zoning. Kirk v. Town of Westlake, 373 So.2d 601 (La.App. 3rd Cir.1979), rehearing denied, writ denied 376 So.2d 1268 (La.1979).

Plaintiff then filed the present suit, again in the Fourteenth Judicial District Court, seeking to have Ordinance No. 204 of the Town of Westlake declared unconstitutional. The trial court found the ordinance to be constitutionally impermissible for lack of proper standards. The Town appealed to the Supreme Court of this State, which held, in Kirk v. Town of Westlake, 387 So.2d 1157 (La.1980) that Ordinance No. 204 was constitutional, and remanded the case to the trial court for further consideration of Plaintiff’s other contention, that the ordinance prohibiting the use of his land as a mobile home park were improperly promulgated and, therefore, null.

The trial court, considering the case after remand, found that the original zoning ordinance, No. 186, “clearly prohibits” the construction of the mobile home park as desired by Plaintiff, as would the later ordinance, No. 204. Plaintiff now appeals that ruling to this court.

The Town of Westlake first promulgated a zoning code, Ordinance No. 186, adopted by the Mayor and Board of Aldermen, on the 19th day of October, 1968. Notice of the adoption of the ordinance was posted in the WESTLAKE/MOSS BLUFF NEWS on April 25, May 2, and May 9, 1979. (There appears to be some confusion about the proper dates of adoption and publication, but the record reflects that both parties stipulated that Ordinance No. 186 was passed twenty days after publication). That ordinance contained several definitions, those pertinent to this case are as follows:

Building: Any structure having a roof supported by columns or by walls and intended for the shelter, housing, or enclosure of persons, animals or chattel.
Dwelling: Any building which is designed for or used exclusively for residential purposes. For the purpose of this Ordinance such buildings shall have a minimum area of 800 square feet.
Trailer: Any vehicle, covered or uncovered, used for living, sleeping, business or storage purposes, having no foundation other than wheels, blocks, skids, jacks, horses, or skirtings and which is, has been, or reasonably may be equipped with wheels or other devices for transporting the vehicle from place to place, whether by motive power or other means. The term “trailer” shall include camp, car and house car.
Trailer park: An area providing spaces where one (1) or more auto trailers can be or are intended to be parked, with flush toilet and bathing facilities provided on the site.

Also included in Ordinance No. 186, in Article IX, were provisions for amending, supplementing or changing the zoning ordinance. Some of these provisions were that a public hearing must be held on the proposed changes, notice of the changes were required to be published once each week in the official town journal for three different weeks, with a required lapse of twenty days between the first publication and the hearing. These provisions allowed that the above procedures need not be followed if an entire new ordinance was to be enacted, but that LA-R.S. 33:4721 through 4730 would control. For our purposes, the most pertinent provision of these statutes is the requirement of a public hearing on the proposed new ordinances, and a publication of notice of hearing for three weeks in the official journal of the municipality.

Ordinance No. 204 was adopted by the Town Council on November 9, 1970. The record reflects that the proper procedures for its adoption were not followed. Therefore, it is null and void. Talbert v. The Planning Commission, City of Bogalusa, 230 So.2d 920 (La.App. 1st Cir.1970). That being so, we must look to Ordinance No. 186 to see if Plaintiff can construct a mobile home park.

Plaintiff’s property, as previously stated, is zoned for single or multiple family dwellings. Plaintiff contends that a “dwelling” is a “building” and that a “mobile home” is a building, therefore, his property is properly zoned for the construction of a “mobile home park”. At first blush, the definition of “dwelling” as contained in Ordinance No. 186 would seem to include the increasingly popular form of housing now called “mobile homes”. However, the town fathers of Westlake specifically excluded from their definition of “dwelling” such shelters with their definition of “trailer”.

We agree with the. trial court that Plaintiff’s contention that a mobile home is a building and not a trailer cannot be supported. The name, “mobile home”, while perhaps more glamorous than “trailer”, is explicit that these shelters can be transported, either under their own power or by other means. They are in fact designed and sold for that very purpose — to provide shelter that is easily transported from place to place. As such, they fall into the definition of “trailer” as set out in Ordinance No. 186 of the Town of Westlake. That same ordinance prohibits these forms of shelter from being placed on Plaintiff’s property. Therefore, the ruling of the trial court is affirmed, at Appellant’s costs.

AFFIRMED.


author: BROOM, Justice, for the Court:

text:
    Jackie Lee PHILLIPS v. STATE of Mississippi.
    No. 53469.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
    Binder, Kirksey & DeLaughter, William B. Kirksey, Alvin M. Binder, Jackson, for appellant.
    Bill Allain, Atty.Gen. by Billy L. Gore, Asst.Atty.Gen., and Bill Patterson, Sp.Asst. Atty.Gen., Jackson, for appellee.
    Before SUGG, P.J., and BROOM and BOWLING, JJ.
   BROOM, Justice, for the Court:

Enhancement of punishment under Mississippi Code Annotated § 99-19-81 (Supp. 1981), our “habitual criminals” statute, is highlighted in this case appealed from the Circuit Court of Coahoma County, the Honorable Elzy J. Smith, Circuit Judge. Defendant Jackie Lee Phillips pled guilty to burglary, and now challenges the sentencing judge’s consideration of an alleged “invalid conviction of escape from Kentucky penitentiary” as basis for enhancement of punishment. As an habitual offender, Phillips was sentenced to seven years imprisonment and adjudicated as not entitled to “parole or probation during the term of said sentence.” We affirm.

Sole argument made is:

THE LOWER COURT ERRED IN CONSIDERING AN INVALID CONVICTION OF ESCAPE FROM A KENTUCKY PENITENTIARY FOR THE PURPOSE OF ENHANCEMENT OF PUNISHMENT UNDER THE HABITUAL OFFENDERS STATUTE, MISS. CODE ANN., SECTION 99-19-81 (SUPP.1981).

On July 8, 1981, defendant Phillips was indicted for burglary of Clinic Discount .Drugs in Clarksdale, Mississippi. As subsequently amended, the indictment charged him with habitual offender status under Mississippi Code Annotated § 99-19-81 (Supp.1981). Two prior state court convictions in Kentucky were the basis for charging Phillips with habitual offender status. The first such conviction, in the Circuit Court of McCracken County, Kentucky, on February 15, 1968, was for voluntary manslaughter, for which defendant Phillips was sentenced to a 21-year prison term. While serving his sentence on the voluntary manslaughter conviction, he escaped, was apprehended, pled guilty to the escape charge, and was sentenced to an additional three years in the Circuit Court of Lyons County in Kentucky. This conviction for escape was the second conviction charged in the defendant’s indictment in the present case.

At trial in the instant case, the defendant, voluntarily and intelligently, and upon advice of counsel, pled guilty to the charge of burglary. Subsequently, the trial court conducted a hearing, pursuant to Rule 6.04, Mississippi Uniform Criminal Rules of Circuit Court practice, in order to determine the propriety of sentencing under Mississippi’s habitual offender act. At this hearing the prosecution and defense stipulated to the defendant’s previous Kentucky convictions as follows:

The parties hereto stipulate and agree that the instant stipulation may be introduced into evidence in the “Habitual” phase of any trial in the above indictment numbers and the same may be used by either party as evidence in this cause without objection by the other party and further that all arguments as to the weight and sufficiency of any item of evidence contained herein are expressly waived.

After entering this stipulation into the record, the prosecution indicated that it would rely upon the stipulation for the purposes of establishing the defendant’s habitual offender status. The defendant contended that he was not properly designated as a habitual offender, attacking the Kentucky escape conviction as being constitutionally invalid because he had not “knowingly and voluntarily” pled guilty. Defense counsel filed a certified copy of Phillips’ conviction, including the minutes of the trial court which read as follows: .

No. 2327 COMMONWEALTH OF KENTUCKY PLAINTIFF VS. ESCAPING FROM THE PENITENTIARY JACKIE PHILLIP DEFENDANT.
This cause coming on for trial, there came the attorney for the Commonwealth, there came the defendant in person and by his attorney William R. Young who was appointed by the Court to represent said defendant. Defendant acknowledged identity of person, waived formal arraignment, and both defendant and his attorney stated to the Court the defendant wished to enter a plea of guilty. The Court then made the following inquiries of the defendant; (a) whether this was his personal decision, (b) whether such desired plea on his part was voluntary, (c) whether he felt he had been properly and efficiently represented by counsel, and (d) whether he knew he had the right to a trial by jury with assistance of counsel.
To all of these questions the defendant replied in the affirmative.

Taking the stand himself, the defendant testified that he had pled guilty to the charge of escape in his 1971 Kentucky conviction in exchange for a prison official’s promise that if he did so he would be let out of solitary confinement. He also testified that he had not been informed at the time of his entering the guilty plea that such a conviction could potentially be used in future criminal proceedings for the purpose of determining his status as an habitual offender. After hearing Phillips’ testimony, and reviewing the evidence in the present cause, Circuit Judge Smith held that sentencing under § 99-19-81, supra, was appropriate. Thus he sentenced defendant Phillips to seven years in prison without parole or probation, as provided by the statute.

At this stage of the development of the instant case, the normally staid and methodical appellate procedure acquired unusually dramatic flavor. On November 20, 1981, the defendant filed his appellant’s brief, assigning the above described error. On January 6,1982, the state filed its appel-lee’s brief, taking the position that the trial court’s actions had been correct and proper. On January 18, 1982, the defendant responded to the state’s brief with “The Rebuttal Brief of Appellant”. Then some rather novel developments occurred. On April 30, 1982, the defendant filed “Appellant’s Supplemental Brief” alleging that on March 18, 1982, Judge Willard B. Paxton, Circuit Court Judge of Lyons County, Kentucky, had vacated two of the defendant’s Kentucky convictions. Therefore, the defendant took the position that his charge of burglary should be reversed, both as to the actual charge and as to the sentencing under the habitual offender act. On May 6, 1982, the state filed the appellee’s “Supplemental Response”, conceding that in view of the vacation of the prior convictions in Kentucky, sentencing of the defendant under the habitual offender’s statute required a reversal of the case but contending that the defendant’s guilty plea of burglary should remain in effect, and the case should be remanded for resentencing only. The next installment of this continuing saga transpired on July 2, 1982, when the state filed a “Supplement to Appellee’s Supplemental Response”, which contained affidavits indicating that one of the defendant’s vacated convictions in Kentucky had been reinstated and that appeals on the vacation of the second sentence were presently pending. In view of this fact,' the state (appel-lee) reversed its position and once again contended that the trial court’s actions in sentencing defendant under the habitual offender’s statute was correct and should be affirmed.

Viewing this imposing array of briefs, rebuttals, response briefs, supplemental response briefs, and supplemental response briefs containing allegations, affidavits, and arguments in a continual state of flux, the wisdom of our steadfast rule that consideration of matters on appeal is limited strictly to matters contained in the trial record becomes obvious. Legg v. Legg, 251 Miss. 12, 168 So.2d 58 (1964); Graham v. Graham, 214 Miss. 99, 58 So.2d 85 (1952); Gavin v. Gavin, 116 Miss. 197, 76 So. 879 (1917). See also State v. Cummings, 203 Miss. 583, 33 So.2d 636 (1948). Cases cited establish that our consideration of a case on appeal will be confined strictly to the record, both in terms of facts occurring prior to trial and to facts occurring since trial. This rule holds true regardless of the nature of the facts sought to be placed before this Court, or the sincerity of counsel in attempting to do so. As Justice Griffith stated in Alexander v. Hancock, 174 Miss. 482, 164 So. 772 (1935), on suggestion of error 174 Miss. 498, 165 So. 126 (1945):

We must decide cases on the facts shown by the record, not by assertions of fact made in briefs or suggestions of error, however sincere counsel may be in those assertions. Facts asserted to exist ought to, and must, be definitely proved and placed before us by a record thereof certified as required by law; otherwise we cannot, in law, know them.

Id. at 498, 165 So. at 126.

In accordance with this long-standing rule, our review of this case will include only those facts actually contained in the record and to those arguments contained in the appellant’s brief, the appellee’s brief, and the appellant’s rebuttal brief. Stated differently, our task on appeal is to review the actions and decisions of the trial court judge within the context of the situation as it existed at that time.

No question was raised either at trial or upon appeal as to the existence of the prior convictions in Kentucky, the nature of those convictions, or of the identity of Phillips as the person convicted. All of these matters were stipulated between the defendant and the state, and further stipulated was that the parties would “not ... challenge the weight or sufficiency of any item contained in the stipulation.” Contemporaneously with this stipulation, the defendant specifically and with particularity reserved the right to challenge the constitutionality of the prior convictions and therefore their validity for use under the habitual offender statute. The question presented us is whether a defendant may attack the constitutional validity of a prior conviction (of another state) which is being used for the enhancement of punishment under our habitual offender statute, § 99-19-81, supra. The defendant would have us answer this question in the affirmative. He challenges the Kentucky escape conviction on the grounds that his guilty plea in Kentucky was neither voluntary, in that it was coerced by threats of solitary confinement, nor was it “knowing”, because he was not informed that the conviction could be used in the future under an enhancement of punishment statute such as our § 99-19-81, supra.

In attacking his guilty plea in the Kentucky conviction, Phillips relies primarily upon two United States Supreme Court cases. First is Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), wherein the United States Supreme Court addressed itself to the subject of determining on appeal whether a plea of guilty had been “voluntary and knowing.” The Supreme Court noted that a defendant’s plea of guilty involved a waiver of several basic constitutional rights:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.
What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana, 368 U.S. 157,173, 82 S.Ct. 248 [256] 7 L.Ed.2d 207, 219; Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209 [1212] 18 L.Ed.2d 326, 330) and forestalls the spin-off of collateral proceedings that seek to probe murky memories.
The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error “because the record does not disclose that the defendant voluntarily and understandingly entered his plea of guilty.” [Boykin v. State], 281 Ala. [659] at 663, 207 So.2d [412] at 415.

Reversed.

395 U.S. at 242-44, 89 S.Ct. at 1711-12, 23 L.Ed.2d at 279-80 (emphasis added).

Having alluded to the nature of a guilty plea, and the importance that the “voluntary and knowing” aspect of any such plea appear on the face of any record of conviction, appellant Phillips cites Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258,19 L.Ed.2d 319 (1967). There the United States Supreme Court held that the constitutional infirmity of a prior Tennessee conviction, resulting from the lack of an affirmative showing of a knowing and intelligent waiver of the right to counsel, rendered that conviction’s use impermissible in a Texas case for the purposes of determining habitual offender status. Burgett stated that the admission of a prior criminal conviction which is constitutionally infirm under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was “inherently prejudicial” and noted that to allow the use of a constitutionally defective conviction for the purposes of enhancing sentencing constituted a new denial of the right to counsel and would completely undermine the court’s holding in Gideon. The Court distinguished its holding in Burgett from its earlier decision in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), wherein the Court upheld a Texas habitual offender statute against the allegations that such a statute was violative of the due process clause, by saying that in Spencer, the prior convictions used under the enhancement of punishment statute were not presumptively void.

Defendant Phillips asserts that reading Boykin and Burgett together leads to the conclusion that any prior conviction which is constitutionally defective as a result of an involuntary plea of guilty cannot be used to support enhanced punishment under an habitual offender statute such as Mississippi Code Annotated § 99-19-81 (Supp.1981).

Prior to any examination of the merits of the defendant’s contention that his plea of guilty to the 1971 Kentucky escape charge was neither knowing or voluntary, the threshold issue which must be addressed is the nature and extent of the trial court’s role in examining the prior convictions sought to be used for the imposition of enhanced punishment under § 99-19-81, supra. The importance of this issue can be seen by an examination of the requirements which would be imposed upon the trial court by the adoption of the appellant’s argument. Any time a court is seeking to apply the enhanced punishment provisions of our habitual offender statutes, that court would be required (according to argument) to in effect hold evidentiary hearings for the purpose of ascertaining and passing upon the constitutionality of any and all prior convictions sought to be utilized by the prosecution in determining a defendant’s habitual offender status. The difficulties which would be thereby imposed upon trial courts are starkly outlined by the facts of the present case. Phillips reasons that in order to use his prior Kentucky convictions the trial court must hold an evidentiary hearing and determine the constitutionality of events transpiring over 10 years ago, in a jurisdiction hundreds of miles away. Witnesses and transcripts must be obtained. A high price in terms of time and money would be exacted from both the state and the defendant, culminating in a result which would be based in most cases upon fading memories and incomplete testimony. If the trial court’s duty extends to such lengths, would not prior convictions also be subject to constitutional attack on such grounds as alleged illegal searches and seizures? The potential difficulties inherent in the defendant’s position become readily apparent when viewed in the context of such factors.

Nonetheless, we address the nature and extent of the duties of the trial court in examining the defendant’s prior convictions being used to establish his habitual offender status. In addressing the issue, we note that both Burgett and Boykin dealt with the situation where the record of the prior convictions were silent with respect to the question of whether the defendants in those cases had been afforded their respective constitutional protections. Prior to these decisions, courts in various jurisdictions, including Mississippi, when reviewing the record of a trial court operated under the assumption that, absent evidence to the contrary, the trial court was presumed to have done that which it should have done. Both Burgett and Boykin held that the rights of the defendants which were addressed by those cases were of such basic importance to the vitality of the American system of criminal justice that a presumption of the safeguarding of those rights could not arise from a silent record. The elimination of this presumption was noted by us in Osborne v. State, 404 So.2d 545 (Miss.1981):

This court has long required the trial judge to determine that guilty pleas were voluntarily made. Carlton v. State, 254 So.2d 770 (Miss.1971). Until Boykin, the determination by the judge was not required to be a part of the record. A judgment raised a presumption that “what ought to have been done by the trial judge with respect to receiving such plea was done.” Bullock v. Harpole, 233 Miss. 486, 495, 102 So.2d 687, 691 (1958).

404 So,2d at 547.

Thus this presumption of constitutional validity was removed by Burgett and Boy-kin only where the record was silent as to the “knowing and voluntary” waiver of counsel and plea of guilty. The United States Supreme Court in Burgett, supra, distinguished its holding in that ease from its previous holding in Spencer, supra, which had upheld habitual offender statutes against a due process attack, by saying that the prior convictions which had been introduced in Burgett were presumptively void by virtue of their silence on the subject of waiver of counsel. Likewise in a subsequent decision the United States Supreme Court specifically described the new requirement which Boykin had imposed upon trial courts:

4. The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6 infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), at n. 4.

At a hearing conducted by a trial court pursuant to Mississippi Uniform Criminal Rules of Circuit Court 6.04, for determining the defendant’s status as an habitual offender, the prosecution must show and the trial court must determine that the records of the prior convictions are accurate, that they fulfill the requirements of § 99-19-81, supra, and that the defendant sought to be so sentenced is indeed the person who was previously convicted. See Pace v. State, 407 So.2d 530 (Miss.1981); Malone v. State, 406 So.2d 37 (1981); Baker v. State, 394 So.2d 1376 (Miss.1981).

Once the above mentioned factors have been ascertained, the trial court is not required to go beyond the face of the prior convictions sought to be used in establishing the defendant’s status as an habitual offender. If, on its face, the conviction makes a proper showing that a defendant’s prior plea of guilty was both knowing and voluntary, that conviction may be used for the enhancement of the defendant’s punishment under the Mississippi habitual offender act.

An example of this type of inquiry into a conviction on its face was addressed by us in Malone v. State, supra, where a defendant, convicted for the sale of amphetamines, was sentenced under § 99-19-81, supra. As proof of prior convictions, the prosecution introduced a traffic ticket showing that the defendant had been cited for public drunkenness, possession of a controlled substance, and an expired driver’s license. The prosecution alleged that the defendant had paid an $80 fine at the time of the issuance of the citation and therefore claimed that such payment constituted a plea of guilty, pursuant to Mississippi Code Annotated § 21-23-17 (1972). We held that the statute relied upon by the state was applicable only in instances of violations of traffic ordinances, and noted that “[I]n all criminal cases the usual procedure for prosecuting and docketing criminal cases must be followed. The uniform arrest ticket was not evidence of a conviction of defendant for the sale of controlled substance in the town of Soso.” Id. at 39. Thus, it can be seen that, in addition to the inapplicability of the statute relied upon by the state, the lack of procedural safeguards rendered the use of such a “conviction” impermissible for the purpose of enhancing punishment.

In fulfilling its mission to determine whether a prior conviction is constitutionally valid for the purpose of enhancing a defendant’s sentence, the trial court must not be placed in position of “retrying” the prior case. Certainly any such frontal assault upon the constitutionality of a prior conviction should be conducted in the form of an entirely separate procedure solely concerned with attacking that conviction. This role is neither the function nor the duty of the trial judge in a hearing to determine habitual offender status. Likewise, any such proceeding should be brought in the state in which such conviction occurred, pursuant to that state’s established procedures. Should such proceeding in the foreign state succeed in overturning the conviction, then relief should be sought in Mississippi by petition for writ of error coram nobis.

An examination of the basic nature of such a constitutionally defective decision is somewhat helpful in determining the role that such a conviction may play in the application of an habitual offender statute. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), (Douglas, J., concurring), Justice Douglas noted:

[A] guilty plea is rendered voidable by threatening physical harm, Waley v. Johnston [316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302], supra, threatening to use false testimony, ibid., threatening to bring additional prosecutions, Machibroda v. United States, [368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473], supra, or by failing to inform a defendant of his right of counsel, Walker v. Johnston [312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830], supra.

Id. at 266, 92 S.Ct. at 500, 30 L.Ed.2d at 435 (emphasis added).

The nature of constitutionally defective prior convictions as being voidable as opposed to void highlights two different aspects of their application in the instant case. First, unless such constitutional infirmity appears on the face of the conviction, or unless the conviction has been vacated via a collateral attack, the conviction may be used for the enhancement of sentence under an habitual offender statute. Secondly, the nature of a constitutionally defective conviction as being voidable highlights the fact that the proper challenge to such a defective conviction lies in a separate action brought expressly for that purpose.

Having addressed the duties of the trial court at a hearing to determine habitual offender status, we must decide whether the trial court in the instant case correctly fulfilled its duty at sentencing hearing. On this point the defendant returns again to the United States Supreme Court decision in Boykin, supra. He points to the three constitutional guarantees enumerated in Boykin, (1) the privilege against compulsory self-incrimination, (2) the right to trial by a jury, and (3) the right to confront one’s accusers. His further assertion is that for a defendant’s guilty plea to be knowing and voluntary, the trial court must specifically question him regarding those three guarantees, and that such questioning affirmatively and specifically appear on the face of the conviction. Further contention is that a “knowing” plea of guilty requires that the accused be informed of the fact that his conviction may be used in subsequent proceedings, where he may be determined to have habitual offender status.

Again we note that in Boykin, supra, the United States Supreme Court was dealing with a record which was totally silent on the issue of a knowing and voluntary plea of guilty. In the instant case, the face of the Kentucky conviction indicates that the defendant was sufficiently questioned to allow the trial judge to make a determination of the knowing and voluntary nature of the guilty plea. The face of the Kentucky conviction reads:

The Court then made the following inquiries of the defendant; (a) whether this was his personal decision; (b) whether such desired plea on his part was voluntary, (c) whether he knew he had the right to a trial by jury with assistance of counsel.
To all of these questions the defendant replied in the affirmative.

United States Courts of Appeals cases which have construed Boykin have expressly refused to give the expansive reading to Boykin that defendant Phillips suggests is required. In Stinson v. Turner, 473 F.2d 913 (10th Cir.1973), the Tenth Circuit Court of Appeals was asked to overturn a guilty plea which the trial judge had determined to be voluntary, but the record of the conviction showed no express waiver of the defendant’s right against compulsory self-incrimination as an element of that guilty plea. The Tenth Circuit refused to require a literal express waiver of the three constitutional guarantees involved in a plea of guilty. Noting that Boykin involved a silent record, whereas the case before the Court of Appeals did not, the Tenth Circuit held that the trial court had sufficiently ascertained that the guilty plea was knowing and voluntary. The court noted that the three constitutional guarantees enumerated in Boykin were for illustrative purposes only, indicating the gravity of the situation confronting the trial judge when he is called upon to determine the knowing and voluntary character of a guilty plea.

In Lockett v. Henderson, 484 F.2d 62 (5th Cir.1973), cert. den. 415 U.S. 933, 94 S.Ct. 1448, 39 L.Ed.2d 492, the Fifth Circuit Court of Appeals was confronted with a similar question. Citing Stinson v. Turner, supra, with approval, the Fifth Circuit held that Boykin did not require a literal, verbatim questioning by the trial court on the issue of whether the three enumerated Boy-kin elements were required to appear on the face of the conviction. It is significant that in both Lockett and Stinson, the Courts of Appeal were looking strictly to the face of the conviction. Although no longer may it be presumed from a silent record that a determination of the voluntar-iness of the guilty plea was made, from an affirmative showing of such on the face of the conviction, it must be presumed for the purpose of sentencing under the habitual offender statute that such guilty plea was constitutionally sufficient.

Last argument presented is that a prior conviction which is presently being challenged in a collateral proceeding cannot be used for the purpose of establishing habitual offender status. We conclude as follows: The mere fact that the defendant has chosen to collaterally attack a prior conviction has no effect upon the status of that conviction until such time as the conviction is vacated. This is in line with the language previously cited from Justice William 0. Douglas indicating that constitutionally defective convictions are voidable. Until such time as they are actually voided, they may be used for habitual offender statute purposes. As stated above, a writ of error coram nobis is the form of remedy available to a defendant, in the event he is convicted and sentenced under the habitual offender statute, and subsequently is successful in his collateral attack based upon the constitutional defects of that conviction. See In Re Petition of Broom, 251 Miss. 25, 168 So.2d 44 (1964), which noted the scope and application of the writ of error coram nobis. See also, Jackson v. State, 418 So.2d 827 (1982) (not yet reported), where Justice Prather stated in effect that a prior conviction though “on appeal” is nonetheless a conviction under § 99-19-81, supra.

Facts outside the scope of the record before us cannot be considered by us here. In the instant case, the face of the record of the foreign convictions amply supports the trial court’s decision to consider the prior Kentucky convictions as factors in sentencing the defendant under § 99-19-81, supra. As stated above, any attack upon a conviction from another state which goes beyond the face of the record of the conviction must be prosecuted in a separate proceeding. We find no reversible error and af-firmance must be ordered.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, and PRATHER, JJ., concur.


text:
    Paul Frank BRADDOCK, Jr. v. Peggy Evans BRADDOCK.
    No. 53484.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
   Appeal from Chancery Court, Alcorn County; Fred P. Wright, Chancellor.

Danny L. Lowrey, Corinth, for appellant.

W. Jett Wilson, Wilsom & Hinton, Corinth, for appellee.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    MARATHON LeTOURNEAU CO. and Hartford Accident & Indemnity Co. v. Gener UZZLE, Sole Dependent and Widow of James R. Uzzle, Dec’d.
    No. 53491.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
    Wheeless, Beanland, Shappley & Bailess, William G. Beanland, Vicksburg, for appellant.
    Vollor, Hosemann & Johnson, H. Gerald Hosemann, Vicksburg, for appellee.
   Appeal from Circuit Court, Warren County; ■ John Prewitt, Sr., Judge.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Wilbur J. MANUEL, Jr. v. STATE of Mississippi.
    No. 53744.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
    Keith Pisarich, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.

SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Fletcher HANKINS v. ALCO LAND AND TIMBER COMPANY, INC., et al.
    No. 53404.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Joseph A. Runnels, Jr., Guy M. Walker, Laurel, for appellant.
    Clark & Massey, David H. Massey, Laurel, for appellees.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before SUGG, P.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.


text:
    Maggie Ivy GARTH v. W.G. HAMLIN.
    No. 53866.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    W. Howard Gunn, West Point, for appellant.
    Tubb, Stevens & Morrison, Thomas M. Tubb, West Point, for appellee.
   Appeal from Chancery Court, Clay County; Lenore L. Prather, Chancellor.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Stephen L. BAGGETT v. Helen Purvis BAGGETT.
    No. 53498.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Harry L. Kelley,- Jackson, for appellant.
    Arnold D. Dyre, Jackson, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Michael Wayne CRITTENDEN v. STATE of Mississippi.
    No. 53503.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Dyer, Dyer & Dyer, Rabun Jones, Green-ville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B.B. Wilkes, Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Wilburn MARTIN, Sr. v. Sherrod RAYBORN.
    No. 53865.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
   Appeal from Circuit Court, Lawrence County; R.I. Prichard, III, Judge.

Mounger, Mounger & Mord, Conrad Mord, Tylertown, Keith Starrett, Magnolia, for appellant.

Watkins & Eager, Thomas M. Murphree, Jr., Jackson, Aultman & Aultman, Thomas W. Tyner, Hattiesburg, for appellee.

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, J., took no part.


text:
    Joty Lynn Brantley SICKLES v. Gary FRYERY and Maxine Fryery.
    No. 53848.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Smith, McLemore & Smith, James G. McLemore, Jr., Carthage, for appellant.
    Jimmy D. Shelton, Tupelo, for appellees.
   Appeal from Chancery Court, Lee County; George F. Adams, Chancellor.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Ebbie J. BOSARGE, et al. v. Timothy A. MOWDY, et al.
    No. 53504.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Bobby Joe Randall, Gulfport, for appellants.
    Page, Mannino & Peresich, Fred Manni-no, Biloxi, for appellees.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Prentiss BROOKS v. STATE of Mississippi.
    No. 53888.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Prentiss Brooks, pro se.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John W. Prewitt, Sr., Judge.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Esther BANKSTON v. Mark E. BANKSTON.
    No. 53864.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Yvonne Chapman Sills, Bay St. Louis, for appellant.
    Favre, Genin & Scafide, John A. Scafide, Jr., Bay St. Louis, for appellee.
   Appeal from Chancery Court, Hancock County; Jason H. Floyd, Jr., Chancellor.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Delose Ann EDWARDS v. STATE of Mississippi.
    No. 53890.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Deramus, Lewis & Tucker, C. Taylor Tucker, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Bonnie C. BERG v. Dennis E. GRAY and Gray’s Flying Service, Inc.
    No. 53881.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    James W. Nobles, Jr., Jackson, Everette Verhine, Vicksburg, for appellant.
    McDavid, Edmonson & Noblin, Richard M. Edmonson, Robert A. Biggs, III, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; ' Charles T. Barber, Judge.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Danny Thomas PIERCE v. STATE of Mississippi.
    No. 54099.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

Neblett, Bobo & Chapman, Ralph E. Chapman, Maynard, Fitzgerald & Bradley, Richard B. Lewis, Clarksdale, for appellant.

Bill Allain, Atty. Gen. by Walter Lee Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Robert W. SANFORD v. BOARD OF SUPERVISORS, COVINGTON COUNTY, Mississippi.
    No. 53846.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Gray, Montague & Pittman, S. Joel Johnson, Hattiesburg, for appellant.
    Dan A. McIntosh, III, Collins, for appel-lee.

      Before WALKER, P.J., and BROOM and HAWKINS, JJ.
   BROOM, Justice, for the Court:

Public road to be “laid out” across the lands of appellant Robert W. Sanford was sought by a petition filed by fifty-two individuals with the Covington County Board of Supervisors [Board]. The petition was based upon Mississippi Code Annotated § 65-7-57 (1972), which sets forth the procedure to be followed in such cases. After the supervisors heard the matter, Sanford appealed from the Board’s order, to the Circuit Court of Covington County, the Honorable L.D. Pittman presiding. From the circuit court’s affirmance, Sanford appeals here. We reverse.

Purpose of the petition was to have a public road constructed, connecting property of one of the petitioners, John Dearman, to an existing public road. After proper notice to affected parties, the supervisors conducted a hearing on the matter and took testimony from several witnesses who established that the road would originate at a public road and dead-end on the Dearman property. After hearing all the testimony, the board issued an order adjudicating that ten or more freeholders and householders of Covington County, Mississippi, had signed the petition. The order states:

3. Whereupon, the Board examined documentary evidence, heard oral testimony and arguments of counsel, and further found that the public interest and convenience requires the road to be laid out and opened and established, as petitioned for.
Whereupon, a committee of two members of said Board, Mr. Robert Stringer and Mr. Garvis Ward were appointed to lay out and mark said road and report their proceedings in writing to the Board at its next meeting on the first Monday of May, 1908. [Emphasis added]
SO ORDERED, this the 7th day of April, 1980.

Upon appeal to the circuit court, in-affirming the Board’s decision, the Circuit Judge stated, inter alia: “I have some question as to whether the order appointing the Committee would be a final order that can be appealed from .... ”

Appealing from the circuit court’s decision, Sanford attacks the jurisdiction of the board to hear the petition. He assigned as error the board’s factual determination that the public interest and convenience require a public road to be built where proposed. Sanford contended that the proposed road constitutes a private driveway to be constructed at public expense.

We think the learned circuit judge noted a crucial feature of the case in stating that he questioned “whether the order appointing the Committee would be a final order”, subject to an appeal. According to § 65-7-57, supra, if the board determines that the public interest and convenience require such a road, the statute requires appointment of a committee of two board members (from a district other than wherein the proposed road would be located) to physically examine the site of the proposed road, and (1) determine if a road on such a location is practicable, (2) lay out and mark the road, and (3) report back to the board of supervisors. After receiving this report the board may “set aside” this report of the committee “for sufficient cause”, or in the alternative the report may be “confirmed.” Mississippi Code Annotated § 65-7-59 (1972).

We note that the order of the board of supervisors from which Sanford has appealed is the order appointing two of the board members as a committee to inspect the proposed road site pursuant to § 65-7-57, supra. Examination of the order from which Sanford appeals reveals that no actual decision to build the road was made by the board. The order merely established the committee to inspect the property without either confirming or setting aside that committee’s report as contemplated by § 65-7-59, supra. If such a decision (to establish the road) were made prior to the appointment of the committee, such decision would be a clear deviation from the provisions of §§ 65-7-57 and 65-7-59. Obvious intent of § 65-7-57 is that the committee shall determine the location of the proposed road and report back to the board whether establishment of the proposed road site is practically feasible. Even if the committee were to report favorably as to the practicality of constructing the road, still the report may be set aside by the supervisors pursuant to § 65-7-59.

Careful examination of the order in the record from which the appeal was taken to the circuit court, and then here, makes it clear that the order fails to show that any decision to actually construct the road across Mr. Sanford’s property has been made by the board pursuant to' §§ 65-7-57 and 65-7-59, supra. Thus the question arises (not assigned as error or briefed) as to whether Mr. Sanford is “aggrieved by a judgment or decision of the board of supervisors” within the meaning of Mississippi Code Annotated § 11-51-75 (1972), which authorizes appeals from the board to circuit court. Under our established law, this Court of its own motion may, as it should, consider a jurisdictional issue even though not assigned by the parties. Home Ins. Co. v. Watts, on sugg. of error, 229 Miss. 735, 93 So.2d 848 (1957); McCaskill v. Little, 214 Miss. 331, 58 So.2d 801 (1952).

A similar situation existed in Costas v. Board of Supervisors of Lauderdale County, 196 Miss. 104,15 So.2d 365 (1943), where we reversed in part on suggestion of error, 196 Miss. 124, 16 So.2d 378 (1943). There the Board of Supervisors had been petitioned for a beer referendum and it was contended that the Board had not made an affirmative determination that the petition was signed by the proper number of qualified electors. The appellant’s motion to set aside the election results was overruled by the Board as it was not filed within ten days of the Board’s order to hold the election. On suggestion of error, this Court reversed its original affirmance of the Board’s action and held that the appellants had properly prosecuted their appeal. The order granting the election was determined to be preliminary to the determination of the overall issue of beer vel non. Costas makes it clear that until such time as the Board has issued a final order adjudicating every essential step in the proceeding, there can be no appealable final judgment. Extracted from Costas is the following pertinent language:

Moreover this court has expressly recognized the principle that appeals from certain orders entered by a board of supervisors, while acting judicially in the course of proceedings before it, entered before the final disposition of the matter involved, are not appealable “in the absence of a statute providing therefor.” Bogue Hasty Drainage Dist. v. Napanee Plantation, Co., 118 Miss. 493, 78 So. 709.

Id. 196 Miss, at 128, 16 So.2d 378.

[I]f the first appeal should be granted without supersedeas much time and expense of the circuit court would be consumed in the taking of proof on the question of whether each of the signers of the petitions were qualified electors and whether they constituted 20 percent of the total number of qualified electors in the county, and with the result that the election might then result against the exclusion of such traffic and those who had appealed from the preliminary order would never become “aggrieved” parties whose rights were affected adversely by anything that had been done in the matter. Of course if the petitions had been adjudged not to contain 20 percent of the qualified electors, the board of supervisors could have taken no further action thereon, the adjudication in this regard would have become final, and with the right of the petitioners to either appeal or go out and obtain additional signatures and refile their petitions.

Id. 196 Miss, at 130, 16 So.2d 378.

Mississippi Code Annotated § 11-51-75 (1972) provides explicitly that appeals to the circuit court from a decision of the county board of supervisors is proper only when brought by a person “aggrieved by a judgment or decision of the board....” Likewise, this Court’s own jurisdiction is expressly set forth in Mississippi Code Annotated § 11-51-3 (1972) as proper only from a “final judgment.” As noted in Bradley v. Holmes, 242 Miss. 247,134 So.2d 494 (1961), an appeal is not a matter of right but is subject to the statutory provisions, and the basic requirement is that appeals are proper only if from a final judgment. See also Perkins v. Thompson, 127 Miss. 864, 90 So. 710 (1921). There can be no valid appeal until there has been a judgment disposing of the case. Our general rule is that in a traditional civil case on appeal from circuit court, all avenues available to an aggrieved party must be exhausted up to and including a judgment denying a new trial. Redmond v. Hilliard, 190 Miss: 839, 200 So. 130 (1941). A final judgment has been defined by this Court as a judgment adjudicating the merits of the controversy which settles all the issues as to all the parties. Hindman v. Bridges, 185 So.2d 922 (Miss.1966); Cotton v. Veterans Cab Co., Inc., 344 So.2d 730 (Miss.1977). The mere fact that an otherwise premature appeal may result in saving expense or delay does not allow an exception to this rule. Universal Life Insurance Company v. Keller, 197 Miss. 1, 17 So.2d 797 (1944).

Accordingly, Sanford’s appeal here is premature because there is not in the record a final order of the board adjudicating in fact that a road at the proposed location would be laid out and established. Therefore, the case must be remanded to the circuit court, for its remand to the Board of Supervisors for further proceedings, if any are desired, consistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ. concur.