author: JASPER E. JONES, Justice Ad Hoc.

text:
    STATE of Louisiana. v. George REED.
    No. 81-KA-1636.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John Sinquefield, Joseph Lot-wick, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Alex Wall, of Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, for defendant-appellant.
   JASPER E. JONES, Justice Ad Hoc.

On December 10, 1980, George Reed pled guilty to forcible rape in violation of LSA-R.S. 14:42.1, and on March 30, 1981 he was sentenced to fifteen years imprisonment to be served at Hunt Correctional Center with two of those years to be without benefit of probation, parole or suspension of sentence.

On appeal Reed raised one assignment of error which asserts that his sentence is excessive and in violation of LSA-Const.Art. 1, § 20.

This court may review sentences for possible excessiveness under its appellate jurisdiction. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutional when it is grossly out of proportion to the severity of the offense or when it is nothing more than the purposeless and needless imposition of pain and suffering. In determining whether a penalty is grossly disporportionate this court considers the punishment and the crime in light of the harm caused to society and determines whether the penalty is so disproportionate as to shock the sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

We begin by noting that appellant’s fifteen year sentence is considerably less than one-half the statutory maximum penalty of forty years for forcible rape. That does not end our inquiry because a sentence may be both within the statutory limits and constitutionally excessive. State v. Sepulvado, supra; State v. Daranda, 398 So.2d 1053 (La.1981).

Our review of the sentence must take into consideration the trial judge’s wide discretion in imposing sentences within the statutory limits and that such a sentence should not be disturbed as excessive absent manifest abuse of discretion. Sepulvado; Daranda; supra.

Here appellant contends that his sentence is excessive and, therefore, unconstitutional under LSA-Const.Art. 1, § 20. Appellant claims that the trial judge failed to give proper weight to certain mitigating factors in imposing sentence. He relies on State v. Roussel, 381 So.2d 796 (La.1980), where this court rejected a contention that a twelve year sentence was excessive in a forcible rape case under the following facts. The victim in Roussel picked up a hitchhiker who then took control of her car and drove to a deserted area. Once there the offender threatened to kill the victim and then raped her. Before releasing the victim the man threatened reprisals should she contact the police. The only mitigating circumstance in Roussel was that it was the defendant’s first felony offense.

These are the facts of the instant case. The defendant entered a neighbor’s home causing her to arm herself with a knife in order to defend herself. Reed was able to take the knife from the victim. He then told her he had come to rape her and was not going to leave until he had done so. The victim ceased resisting once the defendant got her knife. Reed placed the knife on the floor and raped the victim.

At the time of the rape Reed was somewhat intoxicated and the district judge felt that he might not have committed the rape otherwise. This was also Reed’s first felony offense. Opposed to these mitigating factors were the trial judge’s opinions that appellant was in need of correctional treatment in a custodial environment and that any lesser sentence would deprecate the seriousness of the offense. Based on a consideration of those factors the trial judge imposed the fifteen year sentence.

The trial judge took into consideration that the defendant had several prior misdemeanor convictions, including simple battery, simple arson, and possession of marijuana. The trial judge recognized that the defendant had a long history of using drugs and alcohol and that those addictions contributed to his criminal activities. Even though the appellant’s culpability is somewhat lessened by the fact that he was under the influence of alcohol and drugs at the time he committed the offense, these mitigating factors do not detract from the serious nature of the crime and the penalty imposed is not disproportionate to the serious crime committed. Further, the sentence is not a purposeless and needless imposition of pain and suffering considering the trial judge’s finding that appellant is in need of custodial correctional treatment.

Finally, we recognize that we here approve a fifteen year sentence for a defendant probably no more culpable than the one in Roussel who received only twelve years. This does not, however, place today’s decision in conflict with Roussel. The trial judge in each case had wide discretion in the imposition of the sentence. The Roussel decision holds that the twelve year sentence there imposed was not excessive. The Roussel decision does not hold that any greater penalty would have been excessive, only that the penalty actually imposed was not excessive.

There was no abuse by the trial judge in imposing this sentence. For the foregoing reasons the defendant’s sentence is AFFIRMED.

       The Honorables Pike Hall, Jr., Charles A. Marvin, Jr. and Jasper E. Jones, Judges of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices John A. Dixon, Jr., Chief, Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . La.Const.Art. 1, § 20—No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.

      . LSA-R.S. 14:42.1—Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

      .Reed had apparently used both Quaalude and Preludin in the afternoon of the day preceding the early morning hours rape. The trial judge noted that even though the defendant was under the influence of drugs and alcohol, he knew what he was doing at the time of the rape.

      . The trial judge’s factual characterizations of the aggravating and mitigating circumstances are entitled to great weight. State v. Sepulvado, 367 So.2d 762 (La.1979).


source: Caselaw Access Project

author: MARCUS, Justice . BOUTALL, Justice Ad Hoc

license: Public Domain

text:
    STATE of Louisiana v. Henry F. DAVIS.
    No. 81-KA-1663.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Patrick Leitz, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, & Lawrence J. Boasso, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice .

Henry F. Davis was charged in the same information, in separate counts, with aggravated battery on Dawn Biggers and on Louise Crouchet, in violation of La.R.S. 14:34. Defendant filed motions to suppress physical evidence and out-of-court identifications. After a hearing, the trial judge denied the motions. Thereafter, defendant withdrew his former pleas of not guilty and entered a plea of guilty to the charge of aggravated battery on Louise Crouchet expressly reserving his right to appeal the court’s denial of his motions to suppress. The other charge of aggravated battery was dismissed. Defendant was sentenced to serve three years at hard labor. Execution of the sentence was suspended and defendant was placed on probation for three years on the conditions that he serve six months in the parish prison, pay a fine of $1,000 plus court costs, indigent defendant fee, and clerk’s fee, and receive psychiatric evaluation and treatment until discharged. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence. Because we find reversible error in the failure of the trial judge to suppress the out-of-court identifications, we need not consider the other assigned error.

Defendant contends the trial judge erred in denying his motion to suppress the out-of-court identifications of him by Louise Crouchet, the victim of the aggravated battery, and Julie Baye, a witness, because the circumstances of the one-on-one confrontations were impermissibly suggestive.

The record reflects that on January 4, 1980, Louise Crouchet, a high school student, was shot in the right hip by a passing motorist armed with a pellet pistol. Miss Crouchet described her assailant as a heavyset man with a beard, mustache and uncombed hair. She identified the car he was driving as a tan Thunderbird. She stated that she had seen the man drive by her twice earlier on the same day while she was standing outside her school waiting for a bus. Miss Crouchet was fifteen years old at the time of trial.

Another high school student, Julie Baye, had also seen a man in a tan Thunderbird on January 4. She did not, however, see the shooting incident. Miss Baye stated that a man drove past several times while she and a friend were walking to the store and again later when she walked back to school. She saw the same man driving around the school parking lot several weeks later and wrote down the car’s license plate number. That number was subsequently relayed to the police. Miss Baye was seventeen years old at the time of trial.

On February 21, 1980 (some forty-eight days later), Jefferson Parish Sheriff’s Deputies John Ford and Judy Long, received a report that a suspicious person had discharged a firearm in the six hundred block of Avenue C in Marrero. As they proceeded to the scene, additional information was radioed to them. The description of the automobile and license number matched that used by the man wanted for the aggravated battery on Louise Crouchet. They stopped defendant’s vehicle in the seven hundred block of Alio Street and asked him to exit the vehicle. While Deputy Ford was checking defendant’s driver’s license, Deputy Long walked around the opposite side of the car and spotted a weapon on the floor of defendant’s vehicle. Based on the descriptions of the suspect and vehicle, including the license number, defendant was arrested for aggravated battery. He was then transported to the Jefferson Parish Correctional Center.

The sheriff’s office contacted Louise Crouchet and Julie Baye and asked them to come to the Correctional Center to identify defendant. Miss Crouchet was accompanied by her parents and Miss Baye, by her mother and another person. The girls were instructed by a deputy to look through a window into the booking area. Defendant was told to stand on a wooden platform, by himself, that was situated about twenty feet away from the witnesses. The girls were standing next to each other while looking at defendant. There is no indication that any precautions were taken to prevent either from influencing the other. Nor did the state make any showing of an inability to conduct a lineup or comply with recognized safeguards for identifications. Under these circumstances, Miss Crouchet identified defendant as the man who shot her and Miss Baye identified him as the man she had seen driving near her high school.

There can be little doubt that the out-of-court identifications were suggestive (because of the one-on-one confrontations at the police station) and unnecessary (because there was no emergency or exigent circumstance). However, this does not end our inquiry. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the United States Supreme Court held that reliability is the linchpin in determining the admissibility of identification testimony. The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification. The Court noted that the standard, after all, is that of fairness as required by the due process clause of the fourteenth amendment. In the final analysis, it must be determined whether under all the circumstances of a particular case there is a very substantial likelihood of irreparable misidentification.

We must then apply the above analysis to the facts of this case. Miss Crouchet testified that of the three occasions she saw her assailant, the only time she got a good look at him was after she was shot. The man was seated in a moving automobile and was driving away from her at the time. Hence, the amount of time for her to view him was limited to several seconds. Likewise, Miss Baye’s observations were only of a man seated in a passing vehicle. The degree of the witnesses’ attention was not high. While they had become suspicious of defendant, neither had much of an opportunity to observe his physical characteristics. Moreover, being high school girls in their teens, they were inexperienced in making identifications. Also, the descriptions given by the girls were not very detailed. Miss Crouchet admitted that her conclusion that her assailant was heavyset was only based on how he was seated in the car. She testified that the man had a beard, including a mustache, but Miss Baye was uncertain as to the beard. Although the girls testified that they were certain as to their identifications, the one-on-one confrontations at the police station took place some forty-eight days after they had originally seen defendant.

Weighing these indicia of reliability against the corrupting effect of the one-on-one confrontations at the police station, we conclude that there was a very substantial likelihood of irreparable misidentifications. Hence, the identification testimony of Louise Crouchet and Julie Baye should have been suppressed. The trial judge erred in holding otherwise. We must reverse.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

BOUTALL, J. ad hoc, dissents for reasons assigned.

BOUTALL, Justice Ad Hoc

dissenting.

I would dissent.

Although one-on-one identifications are not favored in the law, the trial judge found that under the circumstances of this case, there was sufficient reliability to deny the motion to suppress the identification. I would affirm his denial, leaving the question of identification to be determined on trial.

       Judges O. E. Price and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and Judge John C. Boutall of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined in by Associate Justices Calogero, Marcus, Dennis and Watson.

      . State v. Crosby, 338 So.2d 584 (La.1976).


author: WATSON, Justice. BLANCHE, Justice MARCUS, Justice

text:
    STATE of Louisiana v. Monroe SMITH.
    No. 81-K-2199.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Bernard J. Rice, III, Gretna, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick C. Leitz, Abbott J. Reeves, Asst. Dist. Attys., for defendant-respondent.
   WATSON, Justice.

A writ was granted to consider whether the trial court erred in refusing to suppress defendant’s confession.

Defendant, Monroe Smith, is charged with armed robbery in violation of LSA-R.S. 14:64. Smith was staying at the residence of Rose Marie Gordon in Kenner, Louisiana. When the police arrived at about 11:00 P.M., Smith jumped out of the back window into their arms. It is undisputed that there was an altercation between Smith and two of the three officers making the arrest. The testimony of the three officers did not agree as to which two were involved in the fight. During the fracas, Smith’s jaw was fractured. Smith’s left hand was already swollen from a bullet wound sustained the previous evening.

Charles Baptiste and defendant testified that the officers started beating and kicking Smith without provocation. Afterward, blood was running down Smith’s face and his mouth was askew. He could not speak intelligibly. Detective Frank Hibbs said Smith was resisting arrest. Both Sergeant Vincent Lamia and Detective Dennis Gordon claimed that the other two subdued Smith. Detective Dennis Gordon said he advised Smith of his rights and wrote his confession in question and answer form. The “Voluntary Statement” recites that it started at 1:00 A.M. and concluded at 1:15 A.M. Between 2:00 and 3:00 A.M. Smith was taken to Charity Hospital where he remained for two days. He was treated for a fractured jaw and thumb.

Monroe Smith received five Fs and one D in the seventh grade, his last year of education. His purported confession reflects a tenth grade education. Smith’s testimony was that he complained of pain from his broken jaw and injured left thumb. The officers said he only mentioned some numbness of the jaw. Smith said he signed a blank sheet of paper and denied confessing or being advised of his rights. According to the officers, Smith was advised of his rights and the questions and answers on the statement, written by Gordon, reflected Smith’s responses to the questions. Smith was taken to the correctional center and then to Charity Hospital. It is argued that he was not admitted to the Jefferson Parish Jail because of the severity of his injuries. When Smith was taken to Charity Hospital, the consent to treatment form was signed by someone else on his behalf.

Article 1, Section 13 of the Louisiana Constitution of 1974 provides that one who has been arrested shall be advised of his right to remain silent, his right against self-incrimination, and his right to the assistance of counsel. Before a confession can be introduced into evidence, it must be shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. A defendant may move to suppress a confession on any constitutional ground. LSA-C. Cr.P. art. 703(B). At the trial of a motion to suppress, the state has the burden of proving the admissibility of a purported confession. LSA-C.Cr.P. art. 703(D).

The state must prove beyond a reasonable doubt that a confession was made freely and voluntarily. The trial court’s decision that a confession is free and voluntary is entitled to great weight. State v. Hall, 257 La. 253, 242 So.2d 239 (1970). However, the present record does not support the determination in this case. The state should be obliged to call its witnesses first and go forward with its burden of proof at the hearing on the motion to suppress. State v. Peters, 315 So.2d 678 (La.,1975).

The officers who testified undoubtedly believed that Smith was capable of giving a voluntary confession. One who has suffered physical harm can still be competent to give a free and voluntary confession. State v. Smith, 407 So.2d 652 (La.,1981). However, Smith’s physical condition, reflected by the fact that he was unable to sign the consent to treatment form at Charity Hospital; the inconsistency in the officers’ testimony; the contrary evidence given by the independent witness, Baptiste; and the highly improbable story about the fried chicken; all combine to create at least a reasonable doubt that he gave a free and voluntary confession.

Accordingly, the trial court erred in not suppressing the confession.

For the foregoing reasons, the ruling of the trial court herein is reversed; the motion to suppress is granted; and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and will assign reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent, being of the opinion that the evidence supports the trial judge’s finding that defendant’s confessions were free and voluntary.

MARCUS, Justice

(dissenting).

Whether a person’s physical condition prevents a confession from being free and voluntary is a question of fact to be determined by the trial judge. His finding should not be disturbed on appeal absent a showing that it is not supported by the record. I do not consider that such a showing has been made here. Moreover, defendant does not contend that medical treatment was conditioned on his giving a confession. Pain does not necessarily deprive a person of the ability to tell the truth. I respectfully dissent.

      . The officers even testified that they gave defendant fried chicken during the interrogation; he is said to have devoured the chicken (despite the broken jaw).


author: SARTAIN, Judge.

text:
    John T. COOPER v. Ann Trenchard COOPER.
    No. 11391.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    On Rehearing Jan. 5, 1982.

      Cooper & Hingle, John T. Cooper, New Orleans, for plaintiff-appellee.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

In this litigation both parties sought a judgment of divorce based on the grounds of adultery, the husband by way of his main demand and the wife through her reconven-tional demand. After a trial on the merits the trial judge in his written reasons assigned concluded that Mrs. Cooper was guilty of adultery, and to the extent of adultery on Mr. Cooper’s part the reasons for judgment stated: “The testimony of the Cooper’s son related to a period of time subsequent to July 31, 1978, beyond the time and scope of the reconventional demand. However, the Court concludes and finds, that based on the testimony of the parties’ minor son, that Mr. Cooper is not without fault in this matter.” However, the judgment that was actually rendered and signed was in favor of the husband, Mr. Cooper, and against the wife, Mrs. Cooper; Mrs. Cooper’s reconventional demand was dismissed; and there is no mention of mutual fault. Mrs. Cooper’s subsequent motion for a new trial to amend the judgment to also reflect her husband’s fault was denied. She now appeals.

In her appeal Mrs. Cooper does not contest the judgment insofar as the same found her guilty of adultery and entered a judgment of divorce. She does object to the judgment as rendered in that the same does not reflect her husband’s fault, i.e., his adultery.

In his brief and in oral argument before us Mr. Cooper contends that the evidence presented in the trial court relative to adultery on his part was insufficient to support the trial judge’s conclusion that he committed the same. In response to this contention we answer that Mr. Cooper has not appealed nor has he answered his wife’s appeal. Accordingly, we hold that he cannot now attack the findings of fact and reasons for judgment assigned by the trial judge. The question then is whether Mrs. Cooper can have the judgment amended to reflect the above noted factual conclusion of the trial judge.

Mrs. Cooper contends that with the amendment (Act 72 of 1979) to C.C. art. 160, entitling a needy husband without fault to alimony, she is entitled to the protection of having the final judgment reflect the determination of fault on his part. We agree.

The record before us does not disclose why the trial judge declined to amend the formal judgment to reflect Mr. Cooper’s adultery. We assume for the purpose of this opinion that the judge a quo accepted the argument advanced by his counsel, that is, “. .. that in the event the Court finds the main demand of the plaintiff and a divorce proceeding is valid and renders a judgment on the main demand of the plaintiff decreeing a final divorce between the parties, that the final decree takes precedence over the reconventional demand of the other spouse and the reconventional demand of the other spouse must be dismissed.” McCaa v. McCaa, 163 So.2d 434 (La.App. 2nd Cir. 1964); writ refused June 26, 1964; Perry v. Perry, 207 So.2d 819 (La.App. 1st Cir. 1968).

While the McCaa and Perry cases, above, do stand for the proposition offered by Mr. Cooper, they were repudiated by the Supreme Court in Thomason v. Thomason, 355 So.2d 908, 909, 910 (La.1978), wherein the court stated:

“The Court of Appeal in the instant case correctly disposed of the issue when it stated:
‘. Appellant, (Mrs. Thomason) having committed adultery, may not prevail merely because she was first to reach the courthouse ...” 349 So.2d [928] at 931.’
“This result is consistent with the broadened procedural rules for reconventional demands enacted by the legislature in 1960. Code of Civil Procedure article 1061 replaced the rule of article 375 of the Code of Practice of 1870 which required the reconventional demand to be ‘connected with and incidental to’ the main action. Article 1061 provides:
‘The defendant in the principal action may assert in a reconventional demand any action which he may have agains't the plaintiff in the principal action ... regardless of connexity between the principal and reconventional demands. (Emphasis added).’
“This change was intended to ‘permit[s] a defendant to urge against the plaintiff any action which he might have.’ Official Revision Comment to C.C.P. 1061. To allow a defendant to assert his claim against the plaintiff only to have it dismissed when the plaintiff proves his or her claim would defeat the purpose of the revision which was to ‘[encourage] the settlement of all disputes between the parties at one time.’ ” (Footnote omitted)

In Thomason the wife sought a divorce based on the conviction and sentence of the husband at hard labor. The husband reconvened for a divorce on the grounds of adultery. The trial court dismissed both claims on the doctrine of recrimination. The wife alone appealed. The Court of Appeal affirmed but indicated that had the husband appealed he would have prevailed on the basis that adultery is the greater fault. 349 So.2d 928, 931. The Supreme Court reversed and, as noted in the above quotation, abrogated the doctrine of recrimination in divorce proceedings. The Court also noted the husband’s failure to appeal. However, in granting the divorce to the wife it affirmed the mutual fault determination by the trial court.

The difficulty in wording a separation (divorce) decree based on mutual fault was first raised in Brocato v. Brocato, 369 So.2d 1083, 1087 (La.App. 1st Cir. 1979); writ refused, 371 So.2d 1341 (La.1979). Separate suits were consolidated for trial but one common judgment was entered in each. In answering the wife’s objection relative to the wording of the judgment the court stated:

“We find that the wrongs of each party standing alone are sufficient grounds to award the other a judgment of separation. C.C. art. 141 is therefore applicable. “Lastly, Mrs. Brocato claims that it was error on the part of the trial judge to enter judgment in favor of her husband and against her even upon his finding of mutual fault. The signed judgment specifically states it was based on mutual fault and therefore the phraseology indicating a nominal winner is a distinction without a difference.”

It is not our purpose here to proscribe a uniform decree in matters such as this. It is, however, very important that where there is a determination of mutual fault in either a separation or divorce action that the final judgment designate that conclusion in some positive manner. Findings of fact and reasons for judgment by the trial judge do not constitute a part of the final decree unless they are incorporated therein. C.C.P. art. 1918; Dinkins v. Broussard, 196 So.2d 636 (La.App. 1st Cir. 1967). In addition, such findings of fact and reasons for judgment, not incorporated in the final decree, cannot be invoked as res judicata. Petty Realty Co., Inc. v. Continental Casualty Co., 47 So.2d 446 (La.App. 2nd Cir. 1950).

For these reasons the judgment of the district court on the main and reconventional demands is amended to read as follows: “IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein on the main and reconventional demands decreeing a final divorce between the parties, John T. Cooper and Ann Trenchard Cooper, on the grounds of mutual fault.” In all other respects the judgment is affirmed. All costs relating to this appeal are assessed against plaintiff-appel-lee.

AMENDED. AND AFFIRMED.

ON REHEARING GRANTED

PER CURIAM.

We granted a rehearing on the application of appellee, John T. Cooper.

This is a divorce action which was initiated by appellee on the ground of adultery. Appellant, Mrs. Cooper, reconvened for a divorce also on the ground of adultery. The trial court gave judgment to appellee on the principal demand and dismissed appellant’s reconventional demand. However, in reasons for judgment the trial court stated that appellee was not without fault.

Thus, we are confronted with a judgment which is inconsistent with the reasons for judgment. In our original opinion we amended the judgment to conform to the reasons for judgment by decreeing a divorce between the parties on the ground of mutual fault.

In reaching our conclusion we held that appellee could not attack the reasons for judgment because he did not appeal and did not answer the appeal.

Also in our original opinion, we considered the significance of the trial judge’s denial of appellant’s motion to amend the judgment in the trial court to conform to the reasons for judgment and reasoned that the trial judge was probably persuaded by the principle advanced by appellee that when the court renders a judgment on the main demand of the plaintiff in a divorce action, that decree takes precedence over the reconventional demand of the other spouse and the reconventional demand must be dismissed. But we found that the trial judge erred in following appellee’s cases because they were repudiated in Thomason v. Thomason, 355 So.2d 908 (La.1978).

We have now concluded that the above two conclusions in our original opinion were erroneous and we now reach a different result in the case.

Beginning with our holding that ap-pellee was not entitled to attack the reasons for judgment because of his failure to appeal or answer the appeal, we now conclude that this is patently unfair considering the status of the case when it reached this court. The judgment appealed from was in appellee’s favor so there was no reason for him -to take the appeal nor did he have any right to do so since an appeal necessarily means an attempt to change or modify a judgment in some way. See C.C.P. Art. 2082. Similarly, he had no reason to answer the appeal because he had no desire to modify or change the judgment in any way. See Art. 2133. Yet he found himself in a position where appellant was championing the reasons for judgment in order to change the judgment in her favor. It seems clear under these circumstances that appellee could attack the reasons for judgment in defense of the judgment he sought to have affirmed. In any event, because of the conclusion we now reach on the second point, this question of appellee’s right to attack the reasons for judgment is of no consequence.

Following the trial court’s rendition of judgment and handing down of his reasons for judgment appellant filed a motion to amend the judgment so as to conform it to the reasons. The trial court was briefed and heard arguments on the motion, and reached the following conclusions:

“The court, having considered the record and arguments of counsel concludes that the motion for amendment of judgment is not well founded and should be denied, and accordingly;
It is ordered, adjudged and decreed that the above described motion for amendment of judgment filed by defendant, Ann Ruth Trenchard Cooper, be denied.”

It seems clear that this action by the trial judge was his last and final decision in his capacity as the fact finder. He was aware of the reasons for judgment in which he had expressed the belief that appellee was not without fault, he had heard the witnesses, including the parties’ eight year old son who testified that his father committed adultery, and he was directly confronted with appellant’s request to change the judgment he had rendered in appellee’s favor to conform to those findings he had made in his reasons. His decision to deny that motion was in effect a well considered finding of fact that appellant had failed to prove her case of adultery against appellee.

The only question remaining before us is whether the trial judge committed manifest error in this final factual determination. The only evidence in support of appellant’s charge was the testimony of her eight year old son which was not necessarily persuasive and does not provide a basis for us to conclude that the trial judge was clearly wrong in his final conclusion that appellee was without fault.

Accordingly, our original decree is vacated and set aside, and the judgment appealed from is affirmed.

AFFIRMED.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    STATE of Louisiana In the Interest of Kenneth BANKS.
    No. 14343.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 1981.
    Kathleen Stewart Richey, Baton Rouge, for juvenile, appellant.
    Tyrone Gibbs, Asst. Dist. Atty., Baton Rouge.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Mover-relator Kenneth Banks, a juvenile, has petitioned this court seeking the exercise of our supervisory jurisdiction to suspend the execution of the judgment of disposition, pursuant to La.C.J.P. art. 103, and to order the setting of bond pursuant to Article 1, Section 18, La.Const. (1974). We deny the motion and request for writs.

Banks was adjudicated delinquent, by a plea of guilty, for violation of La.R.S. 14:34, aggravated battery, on December 3, 1980. The dispositional hearing in this matter was held on January 14, 1981, at which time Banks was committed to the Department of Corrections until January 24, 1982. Defense counsel objected to the sentence, filed a written motion for appeal on January 23, 1981, and moved for suspension of execution of the judgment of disposition and for the setting of bond pending the outcome of the appeal. The trial court denied both motions. Banks is currently being held in detention, without bond, pending the outcome of this writ application.

This court in State of Louisiana in the Interest of Chris Aaron, No. 13930 on the docket of this court refused writs on August 18, 1980, wherein the relator sought bond pending trial. In support of the writ refusal this court cited Article 1, Section 18 and Article 5, Section 19, La.Const. (1974). On September 18, 1980, the Louisiana Supreme Court in their docket number 80-K-2131 granted writs and remanded to the trial court to fix bail, 390 So.2d 208. We are of the opinion that the Aaron case is not controlling because that case dealt with bond pending trial vis-a-vis bond pending appeal.

The Supreme Court in Aaron gave no reasons, but it can be assumed that bail was ordered because of the federal constitutional guarantee to bail pending trial. There is no federal constitutional guarantee of bail after conviction and pending appeal.

Article 1, Section 18, La.Const. (1974) provides a state constitutional guarantee of bail during trial as well as after conviction. However, Article 5, Section 19, La.Const. (1974) is concerned specifically with juvenile procedures and the “detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday.” The Constitution provides that the procedures shall be provided by law. Article 1, Section 18 is general in nature, whereas Article 5, Section 19 is special in that it deals exclusively with juvenile procedures. As between the two, standard statutory interpretative rules require that the special vis-a-vis general statute or constitutional provision control. Thus we conclude that Article 5, Section 19 is controlling, and as such, the Constitution granted to the legislature the authority to establish juvenile procedures. However, even though the state’s constitution grants to the legislature the establishment of juvenile procedures, those procedures cannot deny any rights guaranteed by the federal constitution. Thus, bail pending conviction cannot be denied, whereas bail pending appeal can be.

La.C.J.P. art. 103 provides: “The effect of a judgment of disposition shall not be suspended by an appeal unless the trial court or court of appeals directs otherwise.” Nothing has been presented in the application for writs to cause us to believe that the trial judge abused the discretion granted him by Article 103.

Therefore, for the above and foregoing reasons, the motion to suspend the effect of the judgment of disposition as well as the application for supervisory writs are denied.

MOTION DISMISSED AND WRITS REFUSED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I agree with the affirmance of the denial of suspension of judgment, but disagree with the denial of bail.

While the Supreme Court did not articulate its reasons for granting the writ in the case of State of Louisiana in the Interest of Chris Aaron, 390 So.2d 208, it did, in my opinion, hold that the right to bail does apply to juveniles. Once that hurdle is passed, I find Article 1, Section 18 of the 1974 Louisiana Constitution is applicable. I would, therefore, order that the trial court set bail.

      . Art. 1, Section 18, La.Const. (1974):
      “Excessive bail shall not be required. Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great. After conviction and before sentencing, a person shall be bailable if the maximum sentence which may be imposed is imprisonment for five years or less; and the judge may grant bail if the maximum sentence which may be imposed is imprisonment exceeding five years. After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment for five years.”


author: SAMUEL, Judge.

text:
    Mona Duhe HOWARD v. William Eugene HOWARD.
    No. 11668.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1981.
    Rehearing Denied Feb. 19, 1982.
    Robert R. Faucheaux, Jr., Reserve, for plaintiff-appellant.
    Harry R. Morgan, Luling, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

This matter is before us on exceptions of jurisdiction and venue. On November 16, 1978 a judgment of separation from bed and board was rendered in the Parish of Richland (his domicile) to the plaintiff husband. He also was granted the care, custody and control of the three minor children born of the marriage.

On August 10,1979 the wife was plaintiff in a divorce action she instituted against her husband in the Parish of St. John the Baptist, her domicile. Her petition also requested custody and child support. Judgment of divorce was rendered in her favor in this suit on October 1, 1979. The divorce judgment is silent as to custody and child support. Thereafter, on October 8, 1979 the wife filed a motion for custody and child support in her suit in St. John the Baptist Parish. The husband then filed the declinatory exceptions of lack of jurisdiction and venue now before us. His exceptions are based upon the fact that he retains the custody granted him in the Parish of Richland, where the children always have been domiciled and where he and they still reside.

Following hearing thereon, judgment was rendered dismissing the exception as to jurisdiction, maintaining the exception of venue, and ordering the wife to transfer the matter or have the action dismissed. The wife has appealed.

Louisiana courts have jurisdiction over status in an action to obtain custody of a minor domiciled in the state. C.C.P. Art. 10(5). The related question of venue involves the determination of the proper parish in which an action may be brought.

However, there is no specific provision in the Code of Civil Procedure governing venue in custody actions. Such actions are incidental to an action for separation or divorce and are generally brought in the parish of proper venue for the principal action. Once the court’s jurisdiction attaches, it continues for the purpose of modifying a custody judgment which is always subject to change.

Since jurisdiction on the matter of custody first attached in the suit filed in the Parish of Richland (a court of proper venue under C.C.P. Art. 3941), as correctly found by the trial judge, the Richland court remains the proper forum to resolve this custody dispute.

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

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In view of the Supreme Court case of Lewis v. Lewis, La., 404 So.2d 1230, which overrules prior jurisprudence and was handed down after our original opinion in the instant case, we correct terminology in our opinion.

In following prior jurisprudence, we said:

“However, there is no specific provision in the Code of Civil Procedure governing venue in custody actions. Such actions are incidental to an action for separation or divorce and are generally brought in the parish of proper venue for the principal action.”

Since the Supreme Court now has said the obligation on the part of the parent-to support a child does not arise from the marriage but from the act of paternity and that a judgment awarding support for a child has a legally independent basis and is not a mere incident of a separation decree which terminates with the dissolution of the marriage, we conclude that custody (like support) has a legally independent basis and is not simply incidental to the action for separation or divorce.

The Lewis court further stated:

“If it is customary to deal with this matter in the same suit as that of divorce or separation, it is nevertheless true that it cannot be identified with the subject matter of the divorce or separation suit or be considered incidental to it. See Pascal, The Work of the Louisiana Supreme Court for the 1955-1956 Term—Persons, 17 La.L.Rev. 303, 311 (1957). Our previous opinions holding that support awarded to minor children ceases upon the rendition of a judgment of divorce were in error and are overruled to the extent they are inconsistent herewith. White v. Morris, supra [236 La. 767, 109 So.2d 87 (1959)]; Thorton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Bowsky v. Silverman, supra [184 La. 977, 168 So. 121 (1936)].”

In our view, the custody awarded in the separation decree in the Parish of Rich-land, being independent of the separation action, did not fall when the divorce granted in St. John the Baptist Parish was silent as to custody and, under the limited facts in the instant case, the proper venue for a change of custody rule continued in the Parish of Richland, particularly since that parish is and always has been the domicile of the children involved.

Appellant’s application for a rehearing is denied.

REHEARING DENIED.

      . Proceeding No. 21,702 filed in the Fifth Judicial District Court, Parish of Richland, State of Louisiana, entitled “William Eugene Howard vs. Mona Lisa Duke Howard”.

      . The judgment was signed October 8, 1979.

      . LSA-C.C.P. Art. 3941, places non-waiverable venue for an action for separation or divorce in a parish where either party is domiciled or in the parish of the last matrimonial domicile and a judgment rendered in any other court is an absolute nullity. Both the suit for separation, filed at the husband’s domicile and the wife’s suit for divorce, filed at her domicile, thus meet the criteria.

      . See Perez v. Perez, La.App., 359 So.2d 1136.

      . Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321; Wheeler v. Wheeler, 184 La. 689, 167 So. 191; Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890; Pullen v. Pullen, 161 La. 721, 109 So. 400; Webb v. Webb, La.App., 357 So.2d 1288; DeFatta v. DeFatta, La.App., 352 So.2d 287; Anthony v. Anthony, La.App., 288 So.2d 694; Graves v. Graves, La.App., 122 So.2d 350.


author: ELLIS, Judge: LOTTINGER, Judge,

text:
    In the Matter of Brandy Lynn PARKER.
    No. 14230.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Daniel E. Becnel, Jr., Michael R. Tregle, Reserve, for Randy Parker.
    Douglas R. Tregle, Hammond, for Kim L. Parker Clement.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

Randy Joseph Parker is the father of Brandy Lynn Parker, who was born November 5, 1976. Brandy’s mother, Elizabeth Ann Kettles Parker, died on July 10, 1977. On January 20, 1978, Mr. Parker and his sister, Kim Lorraine Parker Clement (now wife of Peter J. Chopin), filed a joint petition in which they asked that Mrs. Chopin be granted temporary custody of Brandy, because of Mr. Parker’s alleged inability to care for her properly. A judgment was signed accordingly on the same day.

On September 26, 1978, Mr. Parker filed a rule to regain custody, alleging that he had remarried and was in a position to care for Brandy, but that Mrs. Chopin refused to relinquish custody to him. Mrs. Chopin then filed a rule for permanent custody of Brandy. After a hearing, judgment was signed on November 17, 1978, granting full custody to Mrs. Chopin, with liberal visitation rights to Mr. Parker. This judgment was not appealed and became final.

On August 8, 1979, Mrs. Chopin obtained an ex parte order, changing and limiting the visitation rights previously granted to Mr. Parker. Mr. Parker then filed a motion to set aside the ex parte order and to hold a contradictory hearing on the question of altering the prior judgment.

On November 9, 1979, an “extensive conference” was held by the trial judge with counsel for both parties. As a result, Mr. Parker withdrew the motion to set aside the ex parte order, and the matter was submitted to the court for determination. The court ordered that Mrs. Chopin, Mr. Parker, Mrs. Parker, and Brandy all be evaluated by a child psychiatrist, and fixed visitation rights for Mr. Parker, pending receipt of a report from the psychiatrist. The court further stated: “This is not a custody hearing in any way. This was a matter involving a multitude of problems on visitation and otherwise.”

After the evaluation report was received, the court, on October 22, 1980, signed a judgment denying “a request for a change of custody by Randy Joseph Parker” and fixing visitation rights. From this judgment, Mr. Parker has appealed, assigning as error the failure of the court to award custody to him.

As can be seen from the foregoing review of the proceedings herein, custody was not at issue, either by pleading or by stipulation. Because custody was specifically said not to be at issue, we consider the denial of a change of custody to be surplusage in the judgment, presenting no issue for review by this court. No complaint is made as to any other matter covered by the judgment.

The judgment is therefore affirmed as to all matters properly before the trial court, at the cost of Randy Joseph Parker.

AFFIRMED.

LOTTINGER, Judge,

concurring:

I most reluctantly concur.

Except for the glaring fact that the pleadings before the trial court only presented the issue of change of visitation privileges, there is not one shred of evidence in this record which would tend to show that the father of this young girl was unable or unfit or had forfeited his parental rights. It is crystal clear in this state that the rights of a parent over that of a non-parent are superior in questions of custody to the parent’s child, absent proof that the parent is either unable or unfit to care for the child, or has forfeited parental responsibility. Wood v. Beard, 290 So.2d 675 (La.1974).


author: COLE, Judge.

text:
    Michael G. VAUGHN v. Allen Dennis COCO, et ux.
    No. 14398.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 2, 1982.

      Walton J. Barnes, III, Zachary, for plaintiff-appellant Michael G. Vaughn.
    Jerry H. Bankston, Baton Rouge, for defendant-appellee Allen Dennis Coco and Brenda Daigrepont Coco.
    James L. Dendy, Ltd., Baton Rouge, for third party defendant-appellee Alice Faye Vaughn Donaldson.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether Louisiana Civil Code article 156 is self-operative or whether one must file an action to invoke it. The facts giving rise to this litigation are as follows:

Alice Faye Purvis Kelley purchased Lot 181, Oak Manor Subdivision, in East Baton Rouge parish, from John B. Freedman on February 26,1973. At that time Ms. Kelley was not married. She subsequently married Michael G. Vaughn on November 16, 1973, and on April 4, 1974, Mrs. Vaughn executed an act of donation whereby she donated an undivided one-half interest in the property to her husband, Michael G. Vaughn. All acts affecting the real estate were properly recorded.

On November 10, 1975, the couple separated and on December 15,1975, Michael G. Vaughn filed suit in the Family Court for the Parish of East Baton Rouge, seeking a separation from his wife. She answered and reconvened, seeking a divorce on the grounds of his adultery. She was granted the divorce on March 19, 1976. That same day the couple entered a property settlement wherein Mrs. Vaughn was given ownership of the disputed real estate.

Several months later Mr. Vaughn filed suit to rescind the property settlement agreement, alleging lesion beyond moiety. On November 3,1976, he filed a notice of lis pendens in the mortgage records of East Baton Rouge Parish, showing the property was in litigation. On February 25, 1977, Mrs. Vaughn conveyed the property to Allen Dennis Coco and Brenda Daigrepont Coco for the sum of $31,500.00. In September of 1979 judgment was rendered in the lesion suit, declaring the property settlement to be null and void, thereby returning the parties to the status quo as to the ownership of the community property.

Thereafter, Michael G. Vaughn filed the present suit against the Cocos, seeking to recover one-half the price of the disputed property or alternatively, to be declared owner of one-half of the property. He contended that because the property settlement had been annulled, he and his ex-wife were co-owners in indivisión of the disputed property, therefore he was entitled to one-half the value.

The Cocos filed a third party suit against Mrs. Vaughn (now Donaldson), alleging she had breached her warranty of title. Both the Cocos and Mrs. Vaughn filed a motion for summary judgment, alleging there was no genuine issue of material fact as to the nature of the property and as to Mrs. Vaughn’s right to sell the property. The Cocos included as exhibits various affidavits, a copy of the sale whereby Mrs. Vaughn (then Kelley) purchased the property and a copy of the act of donation.

The trial court granted the summary judgment in favor of the Cocos, based on its reasoning that because La.Civ.Code art. 156 is self-operative; the donation was revoked when Mrs. Vaughn obtained the judgment of divorce and the property automatically reverted back to its original status, i.e., it became the separate property of Mrs. Vaughn. She therefore had complete freedom to sell the property if she so desired, the court concluded. Mr. Vaughn has appealed.

We find no error in the reasoning of the trial court. Extensive research has revealed the situation presented here is not one often litigated. We have found only two cases which deal with this issue. The first is Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (La.1956). In that case the husband (the successful party in the separation suit) had bought a diamond ring and given it to his wife. The ring was bought with presumed community funds and the wife argued the donation to her made the ring her separate property. The court agreed with the husband’s contention that although he had donated the ring to his wife, the judgment of separation from bed and board in his favor effected a revocation of the gift, citing La.Civ.Code art. 156. Therefore the ring returned to its original status of community property, with each having an undivided one-half interest. The court stated: "[T]he effect of the decree of separation requires that the ring be considered as part of the common property and not as separate property.” (Emphasis supplied.)

The second case is Fertel v. Fertel, 148 So.2d 853 (La.App. 4th Cir. 1962), writ refused 244 La. 133, 150 So.2d 589. In Fertel, the husband had purchased certain real estate prior to his marriage and then donated an undivided one-half interest to his wife. Later during the marriage the wife recon-veyed her interest back to her husband by an act of donation. The marriage faltered and the wife obtained a judgment of separation. The husband contended that because of his wife’s donation to him the property, in full ownership, was again his separate property. The court held: “In view of the fact that Ruth Fertel obtained the judgment of separation, the trial court properly pronounced that her donation to her husband was a nullity, by virtue of the provisions of LSA-C.C. Art. 156, . .. . ” (Emphasis supplied.) The wife’s one-half interest in the property, as her separate and paraphernal property, was recognized, the remaining one-half interest being the separate property of the husband.

In both cases the court treated article 156 as self-operative, i.e., the parties did not need to file a separate suit to have the donation revoked. We find no error in the trial court doing the same here. In fact, a historical examination reveals that Planiol considered the French equivalent to article 156 (article 299 of the Code Napoleon) to also be self-operative. In his civil law treatise, he discussed donations between spouses and noted that these donations were subject to various methods of revocation. He stated as follows:

“Moreover, the same conclusion follows from Art. 299, which declares a donation rescinded automatically against the spouse adjudged guilty in an action for divorce or separation.” (Emphasis added.) 3 Planiol, Traité élémentaire de droit civil n° 3217 (11th ed. 1939).

Article 299 of the Code Napoleon is very similar to our article 156 in that it states in part, “... the married party against whom the divorce shall have been established shall lose all the advantage conferred by the other party, whether by their contract of marriage, or since the marriage was contracted.” We note although the French article, like our own, does not specifically state the loss of the donation shall be automatic, Planiol, like the courts cited in the two cases above, interpreted it to mean such.

Since article 156 is self-operative, the donation in the instant case was automatically revoked when Mrs. Vaughn obtained the judgment of divorce. We note article 156 speaks of a separation, rather than of a divorce, but article 159 states the effects of divorce are the same as those of separation. Therefore, at the time Mrs. Vaughn sold the property, it was her separate property and Mr. Vaughn had no claim to it.

The fact that the couple included the property in the community property settlement has no effect on our decision. The status of the property is controlled by the various articles of our Civil Code, not by what the parties choose to call it. The property settlement was executed after the judgment of divorce was rendered, therefore, at that moment the real estate was the separate property of Mrs. Vaughn. The property should not have been included in the settlement as community property. Likewise, the fact that the property settlement was declared null in the rescission suit has no effect on the issue here. It simply means that the parties were returned to their status quo as to the community property. The real estate, not being a part of the community, was not affected by the rescission.

We find no merit to appellant’s argument that this revocation has prescribed under La.Civ.Code art. 1561. That article states that when the cause of the revocation is ingratitude of the donee the suit must be brought within one year from the day of the act of ingratitude. We agree with the trial court that the cause of this revocation is not ingratitude. To the contrary, the basis for this revocation can be characterized by art. 1559(4), which is “The legal or conventional return.” As the trial court stated in oral reasons, “. .. the legal or conventional return is what is covered under article 156 and its corresponding divorce provisions under article 159 of the civil code.”

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

AFFIRMED.

APPENDIX

* SUIT NUMBER 238,392,

MICHAEL G. VAUGHN * DIVISION M

VERSUS * 19TH JUDICIAL DIS-

ALLEN DENNIS COCO, * TRICT COURT PARISH

ET UX * OP EAST BATON ROUGE

* STATE OF LOUISIANA

*******************

ORAL REASONS FOR JUDGMENT

THE HONORABLE CHARLES

WILLIAM ROBERTS, JUDGE PRESIDING

FRIDAY, DECEMBER 19, 1980

It is this Court’s belief that the disposition of this matter should actually be made on the basis of the public records doctrine, if you will. The facts are, as shown by the documents attached to the motions, that— and I will call them by first name — Alice acquired the real estate when she was single, then she married Michael Vaughn, the plaintiff in this suit, and purported to donate to him a one-half interest. In that act, she says that it is her intention to convert the title to the property from her separate and paraphernal estate into the community of acquets and gains, but the road to many a place is paved with good intentions. I do not believe that you can convert an act into something of your intention merely by saying so when you have, in fact, made a specific thing. In this case, she made a specific donation of a one-half interest of her separate property to her then husband on the basis of the love and affection for that husband. I frankly don’t think it would make any difference that the additional words were added.

Then Alice and Michael disagreed and Michael filed a suit for separation in Family Court of this parish in suit Number 34,785. Alice reconvened for a divorce on the grounds of adultery.

I do not know what agreements were made, or anything else. I can only go by the record, and the record shows that the matter came up before the Family Court pursuant to previous assignment. After hearing the evidence and argument of counsel, the Court granted the judgment on the reconventional demand, that is, granted a judgment of absolute divorce in favor of Alice and against Michael Vaughn, which had to be on the grounds alleged in the petition, that is, adultery.

Then the parties entered into a purported community property settlement in which Alice received the real estate involved in this lawsuit and some other items, and Michael received certain items. Then Michael filed suit Number 192,782 on the docket of this Court seeking to set aside that community property settlement on the ground of lesion beyond moiety and the judge of the division that heard the matter, on a stipulation of fact of what evidence would be submitted, granted judgment setting aside the community property settlement, but at no time is there any mention in that suit of the possible effects of Articles 156 and 159 of the Civil Code, nor is there any stipulation, even if it could be considered an estop-pel, by Alice that the real estate was community real estate.. The only stipulation was the value of the property and that she had received it in the alleged community property settlement. Now, it may well have been at that time that, considering separate property and community property, the parties gave up claims made as to payments on the mortgage or this, that, or the other, in their purported settlement. But the only stipulation in that case by Alice, which this Court can find, is the value of the property, not a stipulation that it was actually community, and I don’t know that she could by stipulation change what the law says it is.

Now, going to the other arguments, counsel for plaintiff in this case has referred to Article 1559 of the Civil Code about the revocation of donations inter vivos and refers to. only subparagraph one, that is, the ingratitude of the donee, which may have been the issue presented in the “Dimattia” case which is reported at 282 So.2d 554; however, he overlooks the fourth sub-paragraph of that section, of that article, Article 1559, which deals with the legal or conventional return. This Court believes that the legal or conventional return is" what is covered under Article 156 and its corresponding divorce provisions under Article 159 of the Civil Code.

Accordingly, this Court believes and holds that Article 1559(1) is not applicable to the present case, that the one-year prescription in Article 1561 of the Civil Code is not applicable, that the provision that that can only be sued for by that donor is also not applicable, and that what we have before the Court is the effect of Article 156 and 159.

It is true that Michael Vaughn, in his suit on lesion beyond moiety, had filed a lis pendens, but to this Court, that has absolutely nothing to do with whether or not Alice could convey valid title, because even though the suit for lesion was — the decision in the suit for lesion was in favor of Michael Vaughn, it still has nothing to do with whether or not the property involved was the separate property of Alice or whether it was community property, and it wasn’t even presented to the judge in the lesion suit. Now, you could go to, if you wanted, Articles 3542 and 2221 dealing with actions of nullity, or rescission of contracts which are five years and ten years under those articles, but that’s not really relevant in the present instance.

The only problem this Court has right now is whether or not Article 156 is self-operative; in other words, whether or not it is an absolute nullity or a relative nullity. This Court could find no cases other than those previously cited, and the primary case being that of “Fertel v. Fertel” which was reported, I believe, at 148 So.2d 853, a Fourth Circuit decision, but in which writs were denied. Now, I am aware that the denial of writs does not necessarily mean that that is the law. It merely means that the Supreme Court did not believe that it should consider that particular case at that time. But Fertel did hold that a donation which had been made by one party to the marriage to the other party was revoked by virtue of the divorce being granted against the party to whom the donation had been made. Now, Article 156 specifically provides:

“In case of separation from bed and board, the party against whom it shall have been pronounced, shall lose all the advantages or donations, the other party may have conferred by the marriage contract or since...”

And then, Article 159 says:

“The effects of a divorce shall not only be the same as are determined in the case of separation from bed and board, but it shall also dissolve forever the bonds of matrimony...”

So that applying those two articles and considering Fertel, any party looking at the public records, as of the time that Alice sold the property to the Cocos, would be entitled to consider the property as being the separate property of Alice, that the divorce had been granted in favor of Alice against Michael, on the grounds of adultery, and that therefore the donation which Alice had made to Michael was absolutely set aside, without the necessity of any suit for revocation.

That is the ruling of this Court. Now, an appellate court may disagree and say that it is not self-operative, but the only decisions which I have been able to find today indicate that it is.

The plaintiff, Michael, could have and still has the right to file suit against Alice for an accounting and for a partition of community property. But on the basis of Civil Code Articles 156 and 159, this piece of real estate, once the divorce was granted, was separate property of Alice and her conveyance to the Cocos was, as far as the public records are concerned, perfectly valid, and Michael has no claim as against the Cocos. For that reason, the motion for summary judgment filed by the defendants is granted; inasmuch as that motion is granted, there is no need to consider the motion on the third-party demand because it would fall by virtue of the first decision. And, there is also no need to assign any motion for summary judgment that you had filed, Mr. Barnes.

Judgment will be signed, accordingly, Mr. Bankston, if you will prepare and submit it, but submit it to all counsel for approval as to form, and then Mr. Barnes can proceed.

      . Article 156 provides:
      “In case of separation from bed and board, the party against whom it shall have been pronounced, shall lose all the advantages or donations, the other party may have conferred by the marriage contract or since, and the party at whose instance the separation has been obtained, shall preserve all those to which such party would have been entitled; and these dispositions are to take place even in case the advantages and donations were reciprocally made.”

      . The court stated that since it was dismissing the suit as to the Cocos there was no reason to consider the motion for summary judgment filed by Mrs. Vaughn. The well-reasoned opinion of the trial judge is annexed as an appendix.

      . At one time, under article 1749 of the Civil Code, inter vivos donations between spouses were always revocable. Act 187 of 1942 (R.S. 9:2351 et seq.) repealed article 1749, providing such donations to be as irrevocable as if made to a stranger. The Act, however, also provided that it shall not be construed to modify in any way the provisions of article 156.

      . Article 159 reads in pertinent part as follows:
      “The effects of a divorce shall not only be the same as are determined in the case of a separation from bed and board, but it shall also dissolve forever the bonds of matrimony, between the parties, and place them in the same situation with respect to each other as if no marriage had ever been contracted between them.”

      .Art. 1559 reads as follows:
      “Donation [Donations] inter vivos are liable to be revoked or dissolved on account of the following causes:
      1. The ingratitude of the donee;
      2. The non-fulfillment of the eventual conditions, which suspend their consummation;

        3. The non-performance of the conditions imposed on the donee;
      4. The legal or conventional return.


author: LEAR, Judge.

text:
    Norma Jean DAVIS v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    No. 14407.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 16, 1982.
    A. Clay Pierce, Jr., Baton Rouge, for plaintiff-appellant Norma Jean Davis.
    John W. Swanner, Baton Rouge, for defendant-appellee St. Paul Fire & Marine Ins. Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Norma Jean Davis, at the time of her injury, was a thirty-two year old female who was employed in the kitchen of the Admiral Benbow Inn in Baton Rouge, Louisiana, during 1979. Her job was to clean tables and help in the kitchen doing general manual labor. On or about May 13, 1979, while in the course and scope of her employment, she slipped and fell to the floor as she was carrying a heavy tray of dishes from a table. As a result of the fall, she injured her back and workmen’s compensation benefits were initiated and paid by defendant insurer. After receiving a report from plaintiff’s medical doctor stating that she was able to return to work, defendant terminated plaintiff’s workmen’s compensation benefits.

Plaintiff contended that she continued to be disabled as a result of the fall and suit was brought to enforce her right to workmen’s compensation benefits. After a bench trial, judgment was rendered in favor of defendant, dismissing plaintiff’s suit. This appeal followed.

It is undisputed that plaintiff fell and was injured. The only issue presented to the trial court was whether she continued to be disabled after February, 1980, and the duration of her disability, if any. In this regard the trial court concluded that plaintiff suffered from no “physical” disability at the time of trial, and that “If she is at all disabled it is based on emotional factors, most of which emanated prior to her injury and some following her injury.”

Plaintiff’s treating physician, Dr. L. J. Messina, testified that, although he believed his treatment was complete and that plaintiff was able to return to work, he did “think it possible that she [plaintiff] had some pain in her back, even though we sent her back to work.” Plaintiff was also seen by an orthopedic surgeon, Dr. Charles S. Kennon. Dr. Kennon examined the plaintiff on two separate occasions and, although plaintiff complained of continuing pain in her lower back, Dr. Kennon stated that “from an orthopedic standpoint, there are no objective findings to indicate any serious disability in the low back area.” Dr. Ken-non placed no restrictions on plaintiff’s use of her low back, except for heavy lifting. However, Dr. Kennon stated that the lack of objective symptoms in this case does not positively indicate that plaintiff was not having the pain she described, and he therefore suggested that plaintiff be psychologically evaluated.

Dr. Fred L. Tuton, the clinical psychologist who evaluated plaintiff, stated that “the profile patterning did indicate a psy-choneurotic condition which Ms. Davis attempts to solve problems in her environment by the development of somatic complaints .... In summary, the present test results indicate that Ms. Davis’ persistent reporting of back pain appears to be related [to] a significant degree to psychological factors rather than organic pain.”

Plaintiff was also evaluated by Dr. Francisco A. Silva, a practicing psychiatrist. Dr. Silva testified that plaintiff did believe that she was disabled and that he did not think that she was faking the pain which she complained about. Dr. Silva also stated that it was his medical opinion that, “maybe for emotional reasons” plaintiff was disabled at the time of his examination and unable to return to work. With regard to whether these emotional problems were related to plaintiff’s work injury, Dr. Silva testified that:

“[Prior to plaintiff’s accident] her social and psychological emotional adjustment had been kind of borderline but apparently had been worse since this accident. It is not unusual for a person who is kind of hanging by their fingernails in their adjustment to life when something happens to disturb whatever little equilibrium they have left to have difficulty returning back to their previous level of performance.”

When asked if plaintiff’s fall was the thing that pushed her over the edge, Dr. Silva stated that “Yes, you can say that.”

Plaintiff herself testified that she experiences pain in her lower back every day and that she is unable to return to work for this reason. She also stated that she is able to do very little around the house. Plaintiff’s sister testified that she would see plaintiff a couple of times a week and that plaintiff complained of back pains, could not walk or do housework and for the most part plaintiff could not even bend down to put her shoes on.

It is well settled that, if plaintiff can only work in substantial pain, she is totally disabled under the workmen’s compensation statute. Spillers v. City of Shreveport, 367 So.2d 135 (La.App. 2nd Cir., 1979); Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La.App. 3rd Cir., 1978), writ refused La., 358 So.2d 645; Phillips v. Dresser Engineering Company, 351 So.2d 304 (La. App. 3rd Cir., 1977), writ refused La., 353 So.2d 1048. This is true not only where plaintiff’s pain is caused by a present physical impairment or condition, but also where disabling pain results from an emotional or mental affliction, provided that the psychological disability actually resulted from a physical injury. Franklin v. Complete Auto Transit Co., 397 So.2d 60 (La.App. 2nd Cir., 1981). Thus, such condition must not only be shown to exist, but also that it was causally connected to the work-related accident. Knight v. Southeastern Chemical Corp., 344 So.2d 67 (La.App. 4th Cir., 1977).

The medical evidence, and especially the evaluations of plaintiff made by Drs. Tuton and Silva, indicate that plaintiff is experiencing pain in her back which is real to her. This conclusion, and plaintiff’s other symptoms, such as headaches, dizzy and crying spells and difficulty sleeping, are corroborated by plaintiff’s own testimony and that of her sister. This testimony is undisputed and uncontradicted. Defendant has offered no evidence which casts doubt on the credibility of plaintiff or the other witnesses. In fact, the trial court, in its reasons for judgment, appears to accept the fact of plaintiff’s disability, attributing it, however, to “emotional factors”. We therefore conclude that plaintiff has clearly proven by a preponderance of the evidence that she was temporarily, totally disabled at the time of trial.

We further find that the trial court was clearly wrong in concluding that most of these emotional factors emanated prior to plaintiff’s injury. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record indicates no history of emotional illness prior to plaintiff’s injury in May, 1979. Prior to this injury, plaintiff worked regularly and had no significant health problems, and especially no disease of or pain in her back. We find that plaintiff did not experience this pain or the other symptoms prior to her injury. The evidence clearly indicates that these symptoms began at the time of and relate to plaintiff’s on-the-job injury. Plaintiff has clearly proven by a preponderance of the evidence that she developed this disabling anxiety syndrome as a result of her work-related injury. We therefore find that plaintiff had been from the time of her injury and was at the time of trial temporarily, totally disabled.

For the foregoing reasons, the judgment of the trial court is reversed and judgment is hereby rendered in favor of plaintiff and against defendant awarding her workmen’s compensation benefits in the amount of Seventy-nine and No/100 ($79.00) Dollars per week during her disability, with interest at the legal rate from the time each weekly payment became due until paid. Judgment is further rendered in favor of plaintiff and against defendant for all reasonable and necessary medical expenses incurred by plaintiff in connection with this injury. Defendant is to be given credit for any and all medical expenses and/or compensation benefits actually paid to plaintiff by them. Defendant-appellee is to pay all costs of both trial and appeal.

REVERSED AND RENDERED.


text:
    Arnold D. WHITE, Jr., et al. v. Mikell I. PATTERSON, et al.
    No. 14411.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 16, 1982.
    Writ Denied April 15, 1982.

      Walton J. Barnes, Baton Rouge, for plaintiffs-appellants Arnold D. White, Jr. and Mary Ann White.
    Richard T. Reed, Baton Rouge, for defendants-appellees Mikell T. Patterson and Dairyland Ins. Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

This suit was brought by plaintiffs, Arnold D. White, Jr. and his wife, Mary Ann White, in order to recover damages sustained by them as a result of an automobile accident. In their original petition, plaintiffs sued Mikell I. Patterson, the driver of the automobile which struck their automobile, and Dairyland Insurance Company as Patterson’s liability insurer. Thereafter, plaintiffs filed an amending and supplemental petition, which named as a defendant Dairyland Insurance Company as Mrs. White’s uninsured motorist insurer. Prior to trial, plaintiffs settled their claim against both Patterson and Dairyland, as Patterson’s liability insurer for the liability policy limits in the amount of $5,000.00. This suit was then tried by jury against Dairyland as plaintiff’s uninsured motorist carrier. The jury determined that only plaintiff Arnold D. White, Jr. should recover against Dairy-land and that the total amount of plaintiff’s damage was $8,000.00. A final judgment was signed in favor of plaintiffs and against Dairyland in the amount of $8,000.00, less a credit to Dairyland for the $5,000.00 policy limits, which plaintiff had received in the prior settlement. Plaintiff has appealed from this judgment, alleging that the trial court erred in allowing defendant the $5,000.00 credit and also in failing to render judgment against defendant for plaintiff’s medical expenses under the medical payments coverage contained in plaintiffs’ automobile insurance policy. We affirm the judgment of the trial court.

Under the present provisions of our uninsured motorist insurance law, where the tortfeasor had liability coverage which was less than the damages suffered by the innocent party, the latter’s U.M. coverage becomes “excess” insurance. Whitten v. Empire Fire and Marine Insurance Company, 353 So.2d 1071 (La.App. 2nd Cir., 1977). In Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979), the Supreme Court thoroughly discussed the provisions of LSA-R.S. 22:1406 D. While Neimann, supra, dealt with the U.M. carrier’s right to reimbursement under R.S. 22:1406 D(4), the court, citing Whitten, supra, did note that “the 1974 amendment to R.S. 22:1406 D in effect makes U.M. coverage ‘excess’ coverage.” In a footnote to Niemann, supra, the court further stated that:

“The U.M. carrier has no obligation to pay that portion of plaintiff’s damages within the uninsured tortfeasor’s liability policy limits, but only those damages which exceed the policy limits and which are within the U.M. policy limits.”

Because uninsured motorist coverage is “excess”, plaintiff has a right to receive from defendant only that portion of his damages which exceed the limits of the tortfeasor’s liability insurance. Thus, while the trial court used the word “credit”, its judgment did nothing more than determine the amount by which plaintiff’s total damages exceeded the tortfeasor’s liability insurance limits. In this case, plaintiff’s total damages were determined to be $8,000.00. The tortfeasor’s liability insurance limits for one person were $5,000.00 and, thus, plaintiff is only entitled to receive from defendant $3,000.00, the amount by which his total, damages exceed the tortfeasor’s liability limits.

Plaintiff next claims that the trial court erred in not awarding him his medical expenses, in the amount of $842.25, under his medical paymants coverage. Plantiff argues that these medical expenses were “above and beyond the general damages” awarded by the jury, or, alternatively, he has a right to receive payment for these expenses under both his U.M. coverage and the medical payments coverage. We do not agree.

Plaintiff introduced and circulated among the jurors for their consideration evidence of his medical expenses. Later the court instructed the jury that the medical expenses were to be taken into consideration in determining plaintiff’s total damages. The record clearly indicates that the jury included these medical expenses in its estimate of plaintiff’s total damages.

In support of his claim for a double recovery of these medical expenses, plaintiff cites and relies upon our decision in Bunch v. Frezier, 239 So.2d 680, (La.App. 1st Cir., 1970).

As we noted in Bunch, supra, it is elementary that each insurance contract must be determined in the light of its own particular terms and provisions. The language contained in the policy at issue in Bunch, supra, stated that “the amount paid by virtue of the uninsured motorist clause shall be reduced by all sums paid on account of bodily injury by or on behalf of the owner or operator of the uninsured vehicle.” We therefore found that the payment by defendant under the medical payments clause was not a payment made within the above quoted language and that payments made under the U.M. coverage could not be reduced by the amount paid under the medical payments clause.

The provisions of the U.M. coverage at issue here, and under which plaintiff was insured, state as follows:

“(D) The company shall not be obligated to pay under this insurance that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured highway vehicle which represents expenses for medical services paid or payable under the medical payments coverage of this policy.”

The policy provision at issue in Bunch, supra, is very different than that at issue here, and it is this difference in policy language which dictates an outcome different than our decision in Bunch.

This distinction was, in fact, recognized by us in Bunch at Page 684, where we stated:

“We are cognizant of Morgan v. State Farm Mutual Automobile Insurance Company, La.App., 195 So.2d 648, and Connelley v. Southern Farm Bureau Casualty Co., La.App., 219 So.2d 206, wherein payments under medical pay clauses were held deductible from payments due pursuant to an uninsured motorist clause. Examination of the cited authorities discloses that they contained language different from that employed in the policy issued by appellant herein.”

The language contained in the policies at issue in Morgan and Connelley is similar to the provisions of the insurance contract at issue here, and dissimilar from those contained in Bunch.

In Taylor v. State Farm Mutual Automobile Insurance Co., 237 So.2d 690 (La.App. 4th Cir., 1970), relied upon by defendant, the court considered a policy provision nearly identical to that at issue here. In Taylor, the trial court had allowed the U.M. carrier a credit for the amount it had paid under the medical payments coverage, basing this credit on the language of the policy. In reversing the trial court and disallowing the credit given to the U.M. carrier, the court of appeal stated that:

“That is not our interpretation of the amendment but. rather we consider it to be designed only to protect the insurance company from double exposure for medical payments. Thus it prevents an insured whose medical expenses have been paid under the medical payments coverage from collecting for those medical expenses once again, in the event that a judgment for general damages in his favor and against the insurance company under its uninsured motorist coverage falls below the policy limits of that coverage. However, in a case such as Mr. Taylor’s where the award for general damages exceeds the policy limits on uninsured motorist coverage, the insurance company must pay its insured the full limits of the policy ... regardless of what it has paid him under the medical payments coverage.”

In Wilkinson v. Fireman’s Fund Insurance Co., 298 So.2d 915 (La.App. 3rd Cir., 1974), the court considered a similar situation. As in Taylor, supra, plaintiff’s damages exceeded the U.M. limits and the court therefore refused to allow the U.M. carrier a credit for the amount paid under the medical payments coverage.

We choose to follow the rule in Taylor and Wilkinson, and therefore find that, where plaintiff’s total damages do not exceed the U.M. policy limits, and the language of the policy allows such, as it does here, the U.M. carrier is entitled to a credit for any amount which it has paid plaintiff under the medical payments coverage, or, in the event that no payment has been made under the medical payments coverage, the U.M. carrier is not obligated to make a separate payment under this coverage where these damages are included in the award made under the U.M. coverage.

Because plaintiff’s total damages did not exceed defendant’s U.M. policy limits, which were in the amount of $10,000.00, we find that no payment under the medical payments coverage was due to plaintiff from defendant.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs on appeal are to be paid by plaintiff-appellant, Arnold D. White, Jr.

AFFIRMED.

      . Under the provisions of Mrs. White’s insurance policy, Arnold D. White, Jr. was an insured covered under the uninsured motorist coverage.

      . By agreement of the parties, the jury was never informed of the $5,000.00 settlement payment made by Dairyland to plaintiff, Arnold D. White, Jr. Thus, the jury made a determination of plaintiff’s total damages, rather than what amount plaintiff was legally entitled to recover from defendant.

      . It should be noted that, while in this case plaintiff received in settlement the entire policy limits of the tortfeasor’s liability coverage, it is the amount of the policy limits, rather than the actual amount received by plaintiff in settlement, which is relevant in determining what amount, if any, the U.M. carrier is obligated to pay.

      .The fact that defendant both insured the tort-feasor’s liability and provided plaintiff with uninsured motorist coverage is entirely irrelevant to our decision. In a case where the tort-feasor’s liability coverage and plaintiffs U.M. coverage were provided by separate and distinct companies, our decision would remain unchanged.


author: EDWARDS, Judge.

text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY, Maryland Casualty Company and Hibernia National Bank in New Orleans v. Donald G. LAMBERT, Sharon W. Lambert, Lambert Aviation, Inc. and Lambert Construction Company, Inc.
    No. 14416.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 16, 1982.
    Writ Denied April 27, 1982.

      J. David Forsyth, New Orleans, for plaintiff-appellee The Bank of New Orleans.
    Arthur J. Lentini, Kenner, for defendants-appellants Donald G. and Sharon Lambert.
    Julian J. Rodrigue, Covington, for Sheriff, St. Tammany Parish.
    Daniel A. Smith, New Orleans, for Maryland Casualty Co.
    J. Patrick Beauchamp, New Orleans, for Hibernia National Bank in New Orleans.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiffs, the Lamberts, filed suit to annul a sheriff’s sale of immovable property. Defendants, purchasers of the property at the sale, filed peremptory exceptions of no right of action and no cause of action, which were maintained by the trial court. Plaintiffs appealed the trial court judgment which maintained the peremptory exceptions and dismissed plaintiffs’ action. We affirm.

FACTS

In August of 1974, Donald and Sharon Lambert executed a mortgage covering numerous pieces of property in the parishes of St. Tammany and Jefferson. This mortgage secured various promissory notes. On November 30,1976, judgment was rendered against the Lamberts and various other defendants in the Twenty-Fourth Judicial District Court, Parish of Jefferson, for the unpaid balance of promissory notes held by various plaintiffs and secured by the mortgage.

The plaintiffs in that action, and the amounts of their judgments, are as follows: The Bank of New Orleans and Trust Company (“BNO”), $2,418,121.36; Maryland Casualty Company (“Maryland”), $2,457,-279.21; and Hibernia National Bank in New Orleans (“Hibernia”), $325,709.99. The judgment also recognized the plaintiffs’ mortgage rights in the St. Tammany Parish and Jefferson Parish property on a pro rata basis, commensurate with the amount of each plaintiffs’ judgment.

Subsequent to that judgment, Donald and Sharon Lambert sold the mortgaged property to Lambert Brothers Construction Company, Inc. On February 20, 1980, the Sheriff of St. Tammany Parish sold at public auction that portion of the mortgaged property located within that parish, pursuant to a writ of fieri facias issued in execution of the judgment in the suit on the promissory notes. At the time of this sale Lambert Brothers Construction Company, Inc. was the record owner of the property. BNO, Maryland and Hibernia purchased the property at the judicial sale.

Donald and Sharon Lambert filed a “Petition to Annul Sale and for Injunctive Relief” in the Twenty-Fourth Judicial District Court, Parish of Jefferson. This petition alleged that the sheriff’s sale of the St. Tammany Parish property was unlawful because the mortgaged property was sold in globo, without first being offered as separate and distinct parcels.

The defendants filed a declinatory exception of improper venue, which was maintained by the district court. The court ordered that the case be transferred to the Twenty-Second Judicial District Court, Parish of St. Tammany, pursuant to LSA-C. C.P. art. 932.

Defendants then filed peremptory exceptions of no right of action and no cause of action. Defendants’ exception of no right of action was based upon two contentions: 1) neither Sharon Lambert nor Donald Lambert owned the property in question at the time of the judicial sale, and 2) no request was made prior to the first advertisement (in fact, prior to the sale) that the property be offered separately, rather than in globo. Defendants’ exception of no cause of action asserted that the right to the manner of sale of mortgaged property belongs to the judgment creditor who holds the mortgage, not the judgment debtor.

The trial court maintained both exceptions. The trial judge concluded that plaintiffs had no right of action since they were not owners of the property when it was sold at the sheriff’s sale. The trial court concluded that the right to direct the order of sale, given by LSA-C.C.P. art. 2295 to “the judgment debtor” applies only to a judgment debtor who owns the seized property. The exception of no cause of action was also maintained. Recognizing the indivisible nature of a mortgage, the trial court held that a mortgagee has the right to execute the mortgage on all property covered by the mortgage, or any part of the property, at his discretion.

Plaintiffs appealed the judgment of the district court. With regard to the exception of no right of action, they contend that the judgment debtor need not be the record owner of the property in order to designate the order of sale under LSA-C.C.P. art. 2295, or to sue to annul the sale. Plaintiffs further contend that they have stated a cause of action. They assert that LSA-C. C.P. art. 2295 establishes a requirement that the sheriff sell the seized property separately unless the judgment debtor requests an in globo sale.

EXCEPTION OF NO RIGHT OF ACTION

The trial court maintained defendants’ exception of no right of action based on its conclusion that a judgment debtor must be the owner of seized property in order to exercise the right to direct the order of sale under LSA-C.C.P. art. 2295. The trial court erred in maintaining the exception of no right of action on the basis of this reasoning.

An exception of no right of action raises the issue of whether a plaintiff has an interest in the subject matter of the proceedings. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979); Worcester County Institution for Savings v. Franklin, 377 So.2d 457 (La.App. 4th Cir. 1979); Marquis v. Cantu, 371 So.2d 1292 (La.App. 3rd Cir. 1979).

Plaintiffs filed suit seeking to annul the sale of property which was carried out in execution of a judgment against them. The Lamberts obviously have a real interest in the manner of sale. The manner in which the property is sold, whether by separate portions or in globo, can gravely affect the extent to which a judgment against them is satisfied by the sale of the property. Plaintiffs have a sufficient interest in the outcome of the sale to have standing in a suit which alleges that the sale is null because it was improperly carried out. The trial court erred in maintaining the exception of no right of action.

EXCEPTION OF NO CAUSE OF ACTION

A mortgage is by its nature indivisible and prevails over all the immovables subjected to it. LSA-C.C. art. 3282. The mortgagee can execute his mortgage against all or any part of the encumbered property, at his discretion. Stockmeyer v. Tobin, 139 U.S. 176, 11 S.Ct. 504, 35 L.Ed. 123 (1891); Federal Land Bank v. Rester, 164 La. 926, 114 So. 839 (1927); Lawton v. Smith, 146 So. 361, (La.App. 2nd Cir. 1933).

The procedural right given to a creditor who seizes property under a mortgage or privilege is consistent with this substan-five law. LSA-C.C.P. art. 2295 provides,'in pertinent part, as follows:

“[T]he judgment creditor can direct the sale of property on which he has a mortgage, or a privilege other than that resulting from the seizure.”

Thus, the Code of Civil Procedure gives a judgment creditor who holds a single mortgage over various pieces of seized property the right to direct the manner of sale. The judgment creditor’s right to “direct the sale” includes the right to determine whether the property should be sold separately or in globo.

Defendants, BNO, Maryland, and Hibernia, held a single mortgage over the various pieces of property sold in globo by the St. Tammany Parish Sheriff. Louisiana substantive and procedural law gives them, not the judgment debtor, the right to determine the manner of sale. The trial court committed no error in maintaining the exception of no cause of action. Plaintiffs have failed to state a cause of action because Louisiana law vested the defendants with the authority to direct the manner in which the mortgaged property would be sold.

The trial court maintained the exceptions of no right of action and no cause of action and dismissed plaintiff’s suit with prejudice. As discussed above, the trial court erred in maintaining the exception of no right of action. However, it was correct in maintaining the exception of no cause of action. Therefore, dismissal of plaintiffs’ action was proper.

For the foregoing reasons, the judgment of the district court is amended to overrule the exception of no right of action. The remainder of the district court’s judgment, maintaining the exception of no cause of action and dismissing plaintiffs’ case, with prejudice, is affirmed. Costs of this appeal are to be paid by plaintiffs-appellants.

AMENDED AND AFFIRMED.

      . The Lamberts’ petition was filed with the same caption and number as the earlier suit on the promissory notes. Thus, despite the caption of this case, BNO, Maryland and Hibernia were actually defendants in the nuility action in the lower court.

      . LSA-C.C.P. art. 2295 provides:
      “If several items of property have been seized, or if one item of property which is divisible into portions has been seized, the judgment debtor, at any time prior to the first advertisement, may designate the order in which the items or portion of property will be sold, except that the judgment creditor can direct the sale of property on which he has a mortgage, or a privilege other than that resulting from the seizure.
      “If the judgment debtor does not designate the order of sale, the order of sale shall be at the discretion of the sheriff.
      “When property is offered by items or portions and the total price is insufficient to satisfy the judgment, with interest and costs, or if the judgment debtor so requests, the property shall be offered in globo and thus sold if a higher bid is obtained.”

      . LSA-C.C.P. art. 681 provides:
      “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”

      . An exception of no right of action, based on the reasoning that a judgment debtor who does not own the seized property has no right to direct the order of sale, would more properly have been raised if plaintiffs had filed suit to direct the order of sale. We express no opinion as to the correctness of the trial court’s holding on that issue, however, because that is not the procedural posture of this case.
      Plaintiffs have sued to annul the sheriffs sale, alleging that the manner of sale violated the provisions of LSA-C.C.P. art. 2295. Thus, the question of who had the right to direct the manner of sale is properly disposed of below, in connection with the exception of no cause of action.

      .LSA-C.C. art. 3282 provides:
      “The mortgage is a real right on the property bound for discharge of the obligation.
      “It is in its nature indivisible and prevails over all the immovables subjected to it, and over each and every portion.
      “It follows them into whatever hands they pass.”