author: WATSON, J.,

text:
    Arnold SCHEIDEL v. Michel F. MELLE, Michel F. Melle d/b/a Michel’s Lounge and Wohl, Inc., and X.Y.Z. (Consolidated With No. 12846, Liberty Mutual Insurance Company v. Michel F. Melle, et al.).
    No. 83-C-1400.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Arnold Scheidel, applying for certio-rari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Nos. 12846 and 12847. Civil District Court. No. 77-19585, Division “H”.

Writ denied.

WATSON, J.,

would grant and order the Court of Appeal to decide the case on the record.


source: Caselaw Access Project

license: Public Domain

text:
    Arnold SCHEIDEL v. Michel F. MELLE, Michel F. Melle d/b/a Michel’s Lounge Wohl, Inc. and X.Y.Z. Consolidated with No. 12846 Liberty Mutual Insurance Company v. Michel F. Melle et al.
    No. 83-C-1401.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Liberty Mutual Insurance Company, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Nos. 12846 and 12847. Civil District Court. No. 77-19585.

Writ denied.

WATSON, J.,

would grant and order the Court of Appeal to decide the case on the record.


text:
    Arnold SCHEIDEL v. Michel F. MELLE, Michel F. Melle d/b/a Michel’s Lounge and Wohl, Inc., and X.Y.Z. No. 12846, LIBERTY MUTUAL INSURANCE COMPANY v. Michel F. MELLE, et al.
    No. 83-C-0864.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Arnold Scheidel, applying for remedial supervisory writs, writs of prohibition and mandamus. Court of Appeal, Fourth Circuit. No. 12846. Parish of Orleans, Civil District Court. No. 77-18980.

Writ denied.

WATSON, J.,

would grant and order the Court of Appeal to decide the case on the record.


text:
    STATE of Louisiana v. Jesus RUIZ and Geoffrey Austin Sweeney.
    No. 83-K-1982.
    Supreme Court of Louisiana.
    Sept. 19, 1983.
   In re Jesus Ruiz and Geoffrey Austin Sweeney, applying for certiorari, or writ of review, and stay order. Court of Appeal, Second Circuit. Parish of Ouachita, Fourth Judicial District Court. No. 40658. 437 So.2d 330.

Stay order denied.


text:
    Walter and Mary KAPPEL v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Calcasieu Parish Police Jury and The United States Fidelity and Guaranty Insurance Co.
    No. 83-C-1471.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Walter and Mary Kappel, applying for writs of certiorari and review. Court of Appeal, Third Circuit. Parish of Calcasieu, Fourteenth Judicial District Court. No. 78-3383. 430 So.2d 1084.

Granted. The judgments of the lower courts are set aside. The department’s affidavit, which only established that Sam Houston Park Road was not in the state highway system, did not assert that the Department did not maintain the road, and that issue remains a dispute of material fact which precludes summary judgment.


text:
    Sauro MONTESINO v. Dora T. ARGUELLO.
    No. 83-C-1470.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Sauro Montesino, applying for cer-tiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 80-5488, Division “K”. 433 So.2d 383.

Denied.


text:
    MANUEL TRUCK & EQUIPMENT, CO., INC., v. B.G. HOOKER PETROLEUM TRANSPORT, INC.
    No. 83-C-1472.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re B.G. Hooker Petroleum Transport, Inc., applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of St. Landry, Twenty-Seventh Judicial District Court. No. 84424r-2. 430 So.2d 1367.

Denied.


text:
    Elaine HILLS v. SKATE COUNTRY EAST, INC., Pacific Indemnity Company, Federal Insurance Company, The Chubb Group of Insurance Companies, and the Empire Fire and Marine Insurance Companies.
    No. 83-C-1473.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Elaine Hills, applying for writ of certiorari. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 79-16520. 430 So.2d 1035.

Denied.


author: MARCUS, J.,

text:
    STATE of Louisiana ex rel. Troy M. OATSVALL v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1905.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Troy M. Oatsvall, applying for remedial writs. Twenty-Second Judicial District Court, Parish of St. Tammany.

Denied.

MARCUS, J.,

would grant an evidentiary hearing.


text:
    Robert Lee TUTTLE v. Ruth Walker TUTTLE.
    No. 83-C-1153.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Ruth Walker Tuttle, applying for writ of certiorari. Court of Appeal, Fifth Circuit. Parish of Jefferson, Twenty-Fourth Judicial District Court. No. 210-421. 430 So.2d 269.

Granted.


text:
    In the Matter of the SUCCESSION OF Emanuel HARRISON.
    No. 83-C-1350.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Edward Knox, applying for certio-rari, or writ of review. Court of Appeal, First Circuit, Parish of East Feliciana. Twentieth Judicial District Court. No. A-5376. 431 So.2d 1060.

Granted.


text:
    Bruce E. MAYER and Dorothy M. Mayer v. VALENTINE SUGARS, INC., United States Fidelity and Guaranty Company, et al.
    No. 83-C-1388.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Valentine Sugars, Inc., United States Fidelity and Guaranty Company, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 79-6934. 430 So.2d 1068.

Granted.


text:
    STATE of Louisiana, ex rel. Charles WEBB v. STATE of Louisiana.
    No. 82-Kh-1839.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Charles Webb, applying for remedial writs. Parish of St. Bernard. No. 53-703.

Denied. This application has not been ruled upon by district court.


text:
    Reginald P. FONTANA v. ZURICH INSURANCE CO., et al.
    No. 83-C-1213.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Reginald P. Fontana, applying for writ of certiorari. Second Circuit Court of Appeal. Fourth Judicial District Court. No. 102132. Parish of Ouachita. 430 So.2d 718.

Denied.

DIXON, C.J., CALOGERO and DENNIS, JJ., would grant the writ.


text:
    SABINE PRODUCTION COMPANY, et al. v. GUARANTY BANK & TRUST COMPANY, as Trustee and J.N. Shilling, as Trustee. The CHRISTINE MAE SHILLING INTER VIVOS TRUST NO. 1, et al. v. SABINE PRODUCTION COMPANY, et al.
    No. 83-C-1273.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re The Christine Mae Shilling Inter Vivos Trust No. 1, et al., applying for writ of certiorari or review. Court of Appeal, First Circuit. Parish of Livingston, Twenty-First Judicial District Court. No. 36367 c/w 36379. 432 So.2d 1047.

Denied.

DIXON, C.J., CALOGERO and DENNIS, JJ., would grant the writ.


text:
    John G. PETERSON v. Kim Ann Manzella wife of/and Henry L. KLEIN and Jill Sullivan wife of/and Lloyd Arcona.
    No. 83-C-1333.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Kim Ann Manzella, et al, applying for writ of certiorari or review. Court of Appeal, Fifth Circuit. Parish of Jefferson, Twenty-Fourth Judicial District Court. No. 249-211. 430 So.2d 100.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Jules CARRIERE v. Thomas OLIVIER and State Farm Fire and Casualty Company.
    No. 83-C-1343.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Jules Carriere, applying for writ of certiorari and/or review. Third Circuit Court of Appeal, Parish of Acadia. Fifteenth Judicial District Court. No. 46181. 432 So.2d 1089.

Denied.


text:
    Timothy BLANCHARD v. Dr. Leo FARMER; Farmer, Cowick & Lee, Ltd., and St. Paul Fire and Marine Insurance Co.
    No. 83-C-1345.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Timothy Blanchard, applying for writ of certiorari or review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 233836, Div. F. 431 So.2d 42.

Denied.


text:
    Nathaniel WILLIAMS v. E.J. HULL ELECTRIC COMPANY INC. and Bituminous Insurance Companies.
    No. 83-C-1303.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re United States Fidelity and Guaranty Company, applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 77-6242. 433 So.2d 1097.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    John A. LeBLANC, Jr. v. Henry H. WALL, Jr.; Frances Wall; Gulf States Utilities Company and Zurich-American Insurance Company.
    No. 83-C-1348.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re John A. LeBlanc, Jr., applying for writ of certiorari or review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 231632, Div. L. 430 So.2d 1130.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    Paul A. LAMBERT and Joyce R. Lambert v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.
    No. 83-C-1351.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Paul A. Lambert and Joyce R. Lambert, applying for writ of certiorari or review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 242434, Div. D. 431 So.2d 23.

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    Dr. and Mrs. Arthur J.L. STRAUSS v. LATTER AND BLUM, INC., Audubon Brokers, Inc., Mrs. Nancy Pomiechowski, and Mrs. Maury Toledano.
    No. 83-C-1389.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Dr. and Mrs. Arthur J.L. Strauss, applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 81-1326. 431 So.2d 9.

Denied.


text:
    Walter Leroy WARD, III, et al v. C.B. PENNINGTON, et al.
    No. 83-C-1390.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Walter Leroy Ward, III, et al., applying for writ of certiorari or review. Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 250-466. Nineteenth Judicial District Court. 434 So.2d 1131.

Denied.


text:
    Francis A. ADAM v. SOUTHERN TOURS, INC.
    No. 83-C-1394.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Southern Tours, Inc., applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 79-12855. 431 So.2d 425.

Denied.


text:
    The STATE of Louisiana, ex rel. William J. GUSTE, Jr., Attorney General v. NAPASCO INTERNATIONAL, INC., Napasco International, Inc., Eastern Division, Napasco International, Inc., Southern Division, Napasco International, Inc., Central Division, Napasco International, Inc., Western Division, Napasco International Corporation and Subsidiaries.
    No. 83-C-1406.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
    Reconsideration Denied Oct. 28,1983.
   In re Napasco International, Inc., et al applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 78-12274. 431 So.2d 13.

Denied.


text:
    Robert E. JONES v. AETNA CASUALTY AND SURETY COMPANY, et al.
    No. 83-C-1408.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Robert E. Jones, applying for writ of certiorari and review. First Circuit Court of Appeal. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 211,746. 421 So.2d 435 and 430 So.2d 1134.

Denied.

DIXON, C.J., would grant the writ.


text:
    Thomas L. FRUGE v. FIRST CONTINENTAL LIFE AND ACCIDENT INSURANCE COMPANY.
    No. 83-C-1409.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Mrs. Thomas L. Fruge, et al., applying for writ of certiorari and/or review. Court of Appeal, Fourth Circuit. Parish of St. Bernard, Thirty-fourth Judicial District Court. No. 22-284. 430 So.2d 1072.

Denied.


text:
    Alicia Honeycutt, wife of/and Andrew JONES v. The SEWERAGE AND WATER BOARD OF NEW ORLEANS, et al.
    No. 83-C-1410.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re City of New Orleans, applying for writs of certiorari or review. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 80-11948. 430 So.2d 1063.

Denied.

MARCUS, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    Christel S. LONZO v. TOWN OF MARKSVILLE, et al.
    No. 83-C-1421.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Christel S. Lonzo, applying for writ of certiorari or supervisory writs. Court of Appeal, Third Circuit. Parish of Avoyelles, Twelfth Judicial District Court. No. 811326. 430 So.2d 1088.

Denied.


author: DIXON, C.J.,

text:
    STATE of Louisiana v. Michael Wayne PICKERING.
    No. 83-K-1426.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Michael Wayne Pickering, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Ninth Judicial District Court, Parish of Rapides. Nos. 204682 and 204684. 432 So.2d 1067.

Denied. Result, is correct.

DIXON, C.J.,

concurs in the denial. 40:1390 was probably unconstitutionally applied, but there was no violation of 14:107.


text:
    Alicia Honeycutt, Wife of/and Andrew JONES v. CITY OF NEW ORLEANS, New Orleans Public Service, Inc., Sewerage and Water Board of New Orleans and South Central Bell.
    No. 83-C-1434.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Sewerage and Water Board of New Orleans, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Orleans Parish. No. 80-11948. 430 So.2d 1063.

Denied. Not timely filed.

DIXON, C.J., concurs m the denial.


text:
    STATE of Louisiana v. Jeffrey GUIDRY.
    No. 83-K-1435.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Jeffrey Guidry, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of Calcasieu, Fourteenth Judicial District Court. No. 8552-82. 432 So.2d 1118.

Denied.


text:
    R.G.C. INVESTMENTS, INC., and Ronald G. Cheek v. Don ALMERICO and National Union Fire Insurance Co., of Pittsburg, Pennsylvania.
    No. 83-C-1436.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Don Almerico, applying for certiora-ri, or writ of review. Court of Appeal, Fifth Circuit, Parish of St. Charles. Twenty-ninth Judicial District Court. No. 25281, Division “C”. 435 So.2d 1043.

Denied.

LEMMON, J., concurs. No error of law.


text:
    STATE of Louisiana v. Sabrina PARKS.
    No. 83-KK-1438.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re State of Louisiana, applying for writs of review and supervisory writs. Twenty-Fourth Judicial District Court. No. 80-3493. Parish of Jefferson, Fifth Circuit Court of Appeal. No. 83-K-470.

Denied.

MARCUS, BLANCHE, and WATSON, JJ., would grant the writ.


text:
    Eula Thompson BARTLETT, Fannie Thompson White, Evelyn Thompson Brazzell, Bobby Benjamin Thompson, Willie D. Thompson, Limmie C. Thompson, Carrine Thompson White, Hazel Thompson Lanardo, Thelma Faye Bailey and Beatrice Thompson Faire v. Stella CALHOUN, nee Herron.
    No. 83-C-1443.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Stella Calhoun, nee Herron, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Seventh Judicial District Court, Parish of Catahoula. No. 12519. 430 So.2d 1358.

Denied. Result is correct.


author: WATSON and LEMMON, JJ.,

text:
    STATE of Louisiana v. Johnny Ray TAYLOR.
    No. 83-K-1444.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Johnny Ray Taylor, applying for writ of certiorari and/or review. Second Circuit Court of Appeal. First Judicial District Court, Parish of Caddo. Nos. 118133 and 118137. 430 So.2d 686.

Denied.

CALOGERO, J., would grant the writ.

WATSON and LEMMON, JJ.,

concur in the denial for the reason that the application was not timely filed.


text:
    WILSON OIL COMPANY, INC. v. James CLARY.
    No. 83-C-1445.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Wilson Oil Company, Inc., applying for writs of certiorari or review. Court of Appeal, Third Circuit. Parish of Concordia, Seventh Judicial District Court. No. 22333. 432 So.2d 1120.

Denied.


text:
    Kurt HANKS v. CRC HOLSTON, INC., et al.
    No. 83-C-1446.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re CRC Holston, Inc., et al., applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Jefferson Davis. Thirty-first Judicial District Court. No. C-440-82. 430 So.2d 1340.

Denied.


text:
    Christel S. LONZO v. TOWN OF MARKSVILLE, et al.
    No. 83-C-1455.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Town of Marksville, applying for writs of certiorari. Court of Appeal, Third Circuit. Parish of Avoyelles, Twelfth Judicial District Court. No. 811326. 430 So.2d 1088.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Christel S. LONZO v. TOWN OF MARKSVILLE, et al.
    No. 83-C-1457.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Avoyelles Parish Police Jury and Rockwood Ins. Co., applying for supervisory writs. Court of Appeal, Third Circuit. Parish of Avoyelles, Twelfth Judicial District Court. No. 811326. 430 So.2d 1088.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.

CALOGERO, J., would grant relative to A/E # 2 only.


text:
    Walter Leroy WARD, III, et al. v. C.B. PENNINGTON, et al.
    No. 83-C-1474.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Naomi Terry Ward, et al., applying for writ of certiorari or review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 250-466. 434 So.2d 1131.

Denied.


text:
    Orman J. WALTERS, Jr. v. DEPARTMENT OF POLICE.
    No. 83-C-1396.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re The Department of Police of the City of New Orleans, applying for writ of certiorari, and review of a judgment. Court of Appeal, Fourth Circuit. Civil Service Commission. No. 1685, Parish of Orleans. 430 So.2d 1032.

Granted.


text:
    Nathaniel WILLIAMS v. E.J. HULL ELECTRIC COMPANY.
    No. 83-C-1869.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Nathaniel Williams, applying for writ of certiorari and/or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 77-6242. 433 So.2d 1097.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ. &


text:
    Milton GUNNELLS, Jr. v. Marvin NEWTON, et al.
    No. 83-C-1404.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Milton Gunnells, Jr., applying for writ of certiorari and review. Third Circuit Court of Appeal. Twelfth Judicial District Court, Parish of Avoyelles. No. 81-1212. 431 So.2d 123.

Denied.


text:
    GULF NATIONAL BANK AT LAKE CHARLES v. Loretta RYAN and W.E. Ryan.
    No. 83-C-1402.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re W.E. Ryan, applying for writ of certiorari. Third Circuit Court of Appeal. Fourteenth Judicial District Court, Parish of Calcasieu. No. 81-6355. 432 So.2d 1122.

Deny on the showing made.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Raymond Morgan ALLEN v. A & W CONTRACTORS, INC.
    No. 83-C-1398.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Raymond Morgan Allen, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Fifteenth Judicial District Court, Parish of Lafayette. No. 81-2837-A. 433 So.2d 839.

Denied.


text:
    Luther Lee CARSON v. CENTRAL PROGRESSIVE BANK and Central Progressive Bank of Amite.
    No. 83-C-1397.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re Central Progressive Bank and Central Progressive Bank of Amite, applying for writ of review. First Circuit Court of Appeal, Parish of Tangipahoa. Twenty-first Judicial District Court. No. 57871, Division E. 432 So.2d 891.

Denied.


text:
    J. Wayne TUCKER, Russell Clark, William H. Russell and E.A. Picon v. SPECIAL CHILDREN’S FOUNDATION, INC. and Special Children’s Village, Inc.
    No. 83-CC-1872.
    Supreme Court of Louisiana.
    Sept. 23, 1983.
   In re J. Wayne Tucker, Russell Clark, William H. Russell and E.A. Picou, applying for reconsideration of granted writ of September 2, 1983, 436 So.2d 1168, Court of Appeal, First Circuit. No. 83-CW0963. East Baton Rouge Parish, Nineteenth Judicial District Court. No. 268853.

Denied.

WATSON and LEMMON, JJ., concur, believing the trial court had jurisdiction to fix a suspensive appeal bond. LSA CCP 2088.


text:
    STATE of Louisiana, ex rel. Albert CLARK v. COURT REPORTER, CRIMINAL DISTRICT COURT, SECTION “A” PARISH OF ORLEANS.
    No. 83-KH-0122.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Albert Clark, applying for writ of mandamus. Parish of Orleans. No. 228-178.

Granted. The district court is ordered to act on the relator’s motion.


text:
    STATE of Louisiana, ex rel. Joel MORRISON v. CRIMINAL DISTRICT COURT, NEW ORLEANS, Louisiana.
    No. 83-KH-0506.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Joel Morrison, applying for writ of mandamus. Parish of Orleans. No. 268-605.

Granted. Trial court is ordered to act on relator’s application by October 14, 1983.


text:
    STATE of Louisiana ex rel., Larry SANDIFER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0742.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Larry Sandifer, applying for writ of mandamus. Parish of Orleans. Nos. 281-045 and 280-900.

Granted. The District Court is ordered to act on relator’s motion on or before October 10, 1983.


text:
    STATE of Louisiana ex rel., Jerry W. EWINS v. Larry GENE, Warden, Camp Beauregard, National Guard Base.
    No. 83-KH-0744.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Jerry W. Ewins, applying for writ of certiorari. Parish of St. Mary. No. 98044.

Granted. This application is dismissed at relator’s request.


text:
    STATE of Louisiana, ex rel. Woodman J. COLLINS v. 31ST JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON DAVIS.
    No. 83-KH-1511.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Woodman J. Collins, applying for writ of mandamus or prohibition. Parish of Jefferson Davis. Nos. 273-64, 274-64.

Granted. District Court is ordered to act on relator’s petition.


text:
    Henry MORGAN v. ROYAL OLDSMOBILE COMPANY, INCORPORATED and General Motors Corporation.
    No. 83-CC-1581.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
    Reconsideration Denied Oct. 28, 1983.
   In re Henry Morgan, applying for writ of certiorari, review, prohibition and mandamus. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 261-308. Fifth Circuit Court of Appeal. No. 83-C-513.

Granted. The rulings of the courts below are reversed. The second supplemental and amending petition is reinstated since it was allowed by a district judge.


text:
    In re Robert L. “Bobby” FREEMAN, et al. v. David C. TREEN, Governor of the State of Louisiana, et al.
    No. 83-CC-2029.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Robert L. “Bobby” Freeman, et al., applying for supervisory writs of review. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 268731. First Circuit Court of Appeal. No. 83-CW-0980.

Granted. The case is remanded to the Court of Appeal to hear arguments in this case within 15 days and to decide the case expeditiously.


text:
    STATE of Louisiana ex rel. Troy BRIDGES # 95998, Louisiana State Penitentiary v. Warden Ross MAGGIO.
    No. 83-KH-1885.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Troy Bridges, applying for writ of mandamus. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 81-3981.

Granted. Application transferred to Court of Appeal, Fifth Circuit, for its consideration.


text:
    STATE of Louisiana ex rel. Richard SMITH v. STATE of Louisiana, Edward Lombard, Clerk of Court.
    No. 83-KH-1934.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Richard Smith, applying for remedial writ. Criminal District Court, Parish of Orleans. No. 288-556.

Granted. Application is transferred to 4th Circuit Court of Appeal.


text:
    STATE of Louisiana, ex rel., Eugene JOHNSON, Jr. v. STATE of Louisiana, DEPARTMENT OF CORRECTIONS.
    No. 83-KH-1989.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Eugene Johnson, Jr., applying for writ of habeas corpus. Parish of Orleans. No. 281-020.

Granted. This application is transferred to the 4th Circuit, Court of Appeal.


text:
    STATE of Louisiana ex rel., Donald WOLFE v. STATE of Louisiana, CRIMINAL DISTRICT COURT, SECTION I, ORLEANS PARISH.
    No. 83-KH-1901.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Donald Wolfe, applying for remedial writ and writ of mandamus. Criminal District Court, Parish of Orleans. No. 291— 979.

Granted. This application is transferred to the trial court to consider non-compliance with its order transferring relator to the Feliciana Forensic Facility.


text:
    CITY OF BATON ROUGE v. Odell MORRISON.
    No. 83-KK-1499.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Odell Morrison, applying for supervisory writs, and writs of certiorari, prohibítion, and mandamus. Nineteenth Judicial District Court. Nos. 10636-10638 and 98078-98080 and 27853, 27854, 50513 and 50514. Parish of East Baton Rouge, First Circuit Court of Appeal. No. 83-KW-0504.

Not considered. Not timely filed.

CALOGERO, J., concurs. Relator is probably still at liberty to bring his complaints by post conviction application.


author: CALOGERO, J.,

text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. L. Romney SCHRIMSHER.
    No. 83-CC-1502.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Hibernia National Bank in New Orleans, applying for certiorari, or writ of review and mandamus. Court of Appeal, First Circuit, Parish of St. Mary. No. 83-CW-0582. Sixteenth Judicial District Court. No. 67036.

Not considered. Not timely filed.

CALOGERO, J.,

concurs. Relator may still seek from the district court time within which to apply to this Court for writs.


text:
    STATE of Louisiana ex rel., Dominick VILLAFRANCO v. Honorable F.V. ZACCARRIA, 24th Judicial District Court, Section “B”, Harry Lee, Criminal Sheriff, Parish of Jefferson, State of Louisiana.
    No. 82-KH-2512.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Dominick Villafranco, applying for writ of mandamus. Parish of Jefferson. No. 80-1435.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., George D. YARBROUGH v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2648.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re George D. Yarbrough, applying for remedial writs. Parish of Orleans. No. 276-402.

Denied.


text:
    STATE of Louisiana ex rel., Spencer RICHARDSON v. Robert HENDERSON, Warden and Honorable Frank J. Shea, Judge, Criminal District Court, Section “G”, 2700 Tulane Ave., Parish of Orleans, New Orleans, Louisiana.
    No. 83-KH-0027.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Spencer Richardson, applying for writs of mandamus, and prohibition. Parish of Orleans. No. 235-761.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. John EDMONDSON v. Judge FARR.
    No. 83-KH-0337.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re John Edmondson, applying for supervisory writs and writ of mandamus. Parish of Morehouse. Nos. 15843 and 15844.

Denied. The trial judge’s having amended relator’s sentence moots this application.


text:
    STATE ex rel., Wilbert MATTHEWS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 83-KH-0394.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Wilbert Matthews, applying for writ of mandamus. Parish of Orleans. No. 223-700.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Stephen G. KENDALL v. Honorable Miriam G. WALTZER, Judge, Section “A”, Criminal District Court, Parish of Orleans.
    No. 83-KH-0424.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Stephen G. Kendall, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 252-098.

Denied.


text:
    STATE of Louisiana, ex rel., Ernest DAVIS v. Honorable Frank J. SHEA, Criminal District Court Parish of Orleans.
    No. 83-KH-0530.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ernest Davis, applying for writ of mandamus. Parish of Orleans. No. 274-353.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Henry ANDERSON v. NINETEENTH JUDICIAL DISTRICT COURT, and Baton Rouge, Louisiana.
    No. 83-KH-0570.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Henry Anderson, applying for writ of mandamus. Parish of East Baton Rouge. No. 242-639.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Elvis BROOKS v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0598.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Elvis Brooks, applying for writ of mandamus. Parish of Orleans. No. 261— 032, Section “G”.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Edward James ARMSTEAD, Jr. v. Honorable Norbert C. RAYFORD, Commissioner, 19th Judicial District Court, East Baton Rouge Parish, Louisiana.
    No. 83-KH-0748.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Edward James Armstead, Jr., applying for writs of certiorari and/or prohibition and mandamus. East Baton Rouge Parish, Nineteenth Judicial District Court. No. 247093. Court of Appeal, First Circuit. No. 83-CW-0212.

Denied.


text:
    STATE of Louisiana, ex rel. Robert WALKER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0755.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
    Reconsideration Denied Oct. 28, 1983.
   In re Robert Walker, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Orleans Parish. No. 219-498.

Denied.


text:
    STATE of Louisiana v. Lawrence M. JASPER.
    No. 83-KH-0772.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Lawrence M. Jasper, applying for writ of mandamus or in the alternative a writ of prohibition. Twenty-fourth Judicial District Court, Parish of Jefferson. Nos. 113775 and 113818.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Clifton W. GOOD v. CLERK OF COURT, SECTION “F”, ORLEANS CRIMINAL DISTRICT COURT, et al.
    No. 83-KH-0785.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Clifton W. Good, applying for writ of mandamus. Parish of Orleans. No. 274— 567, Section “F”.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Gerald CARNES v. Honorable Robert Y. BUTLER, Judge, 2nd Judicial District Court, Parish of Bienville.
    No. 83-KH-0805.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Gerald Carnes applying for writ of mandamus. Parish of Bienville, Second Judicial District Court. No. 20053.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Arthur Lee BATES v. CLERK OF COURT, 39TH JUDICIAL DISTRICT COURT, PARISH OF RED RIVER, State of Louisiana.
    No. 83-KH-0818.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Arthur Lee Bates, applying for writ of mandamus. Parish of Red River, Thirty-ninth Judicial District Court. No. 39-172.

Denied. District court has furnished requested transcripts.


text:
    STATE of Louisiana ex rel., Albert THOMAS v. The STATE of Louisiana.
    No. 83-KH-0843.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Albert Thomas, applying for remedial writ. Parish of Orleans, Criminal District Court. No. 226-318.

Denied.


text:
    STATE of Louisiana ex rel., David Clifton BAILEY v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary and Mr. John King, Secretary.
    No. 83-KH-1138.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
    Reconsideration Denied Nov. 18, 1983.
   In re David Clifton Bailey, applying for remedial writs. Parish of Calcasieu. No. 3210-79.

Denied.


text:
    STATE of Louisiana v. Patrick STEVENSON.
    No. 83-KK-1481.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Patrick Stevenson, applying for supervisory writs. Criminal District Court, Parish of Orleans. No. 234-334. Fourth Circuit, Court of Appeal. No. K-0929.

Denied.


text:
    Jessie LANG v. SHREVEPORT ALARM COMPANY, INC.
    No. 83-C-1513.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Shreveport Alarm Company, Inc., applying for writ of certiorari and review. Court of Appeal, Second Circuit. No. 15395-CA. First Judicial District Court, Parish of Caddo. No. 283669.

Denied.


text:
    STATE of Louisiana v. Ralph E. SCHENCK.
    No. 83-KK-1521.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ralph E. Schenck, applying for supervisory writs. Fourteenth Judicial District Court. No. 14216-82. Parish of Cal-casieu, Third Circuit Court of Appeal. No. K83-394.

Denied.


text:
    Dillon TAYLOR v. James W. ROBERTSON.
    No. 83-C-1530.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Dillon Taylor, applying for writ of certiorari or review. Court of Appeal, Fifth Circuit. No. 83-CA-262. Parish of Jefferson, Twenty-Fourth Judicial District Court. No. 249-807.

Denied.


text:
    BENEFICIAL FINANCE COMPANY OF LOUISIANA v. James SHARP, Jr., et ux.
    No. 83-C-1545.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re James Sharp, Jr., applying for writ of certiorari and review. Court of Appeal, Second Circuit. No. 15392-CA. Parish of Ouachita, Fourth Judicial District Court. No. 24623.

Denied.


text:
    Jack R. GAMBLE, Jr. v. STATE RACING COMMISSION.
    No. 83-CD-1568.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Jack R. Gamble, Jr., applying for use of plenary powers and exercise of authority and supervisory jurisdiction. Civil District Court, Parish of Orleans. No. 83-9004, Division “J”.

Denied.


text:
    Ronald James DUPREE v. The DOW CHEMICAL COMPANY, et al.
    No. 83-CC-1578.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re The Dow Chemical Company, et al., applying for writ of mandamus. Eighteenth Judicial District Court, Parish of Iberville. Nos. 18059, 18060, 18075. First Circuit Court of Appeal. No. 83 CW 0708.

Denied.


text:
    Lawrence J. RITTER v. LOUISIANA STATE DEPARTMENT OF HIGHWAYS and Boh Bros. Construction Co. and ABC Insurance Company.
    No. 83-C-1599.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Lawrence J. Ritter, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. No. 13249. Parish of Orleans, Civil District Court. No. 77-12313, Division “J”.

Denied.


text:
    STATE of Louisiana v. Lucille J. WILKERSON.
    No. 83-KK-1600.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Lucille J. Wilkerson, applying for writ of review. First Circuit Court of Appeal. No. 83-KW-0634. Eighteenth Judicial District Court, Parish of Iberville. No. 4128-82.

Denied.


text:
    STATE of Louisiana v. John BOURGOYNE.
    No. 83-KK-2008.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re John Bourgoyne, applying for writ of certiorari and/or remedial writ and supervisory writ. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 4-83-629. First Circuit Court of Appeal. No. 83-KW-1001.

Denied.


author: BYRNES, Judge. SCHOTT, Judge,

text:
    STATE of Louisiana v. Linda E. JULIAN and Walter Watson. STATE of Louisiana v. Leroy JULIAN and Walter Watson.
    No. C 0446.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1983.
    Dwight Doskey, New Orleans, for petitioner Watson.
    Harry F. Connick, Dist. Atty., Orleans Parish by Paul G. Mayoral, Asst. Dist. Atty., Juvenile and Special Projects Div., New Orleans, for State.
    Before BYRNES, SCHOTT and WILLIAMS, JJ.
   BYRNES, Judge.

On remand from the Supreme Court, 433 So.2d 183.

By this application for writs relator raises two questions not previously settled by the jurisprudence of this State; 1.) Do the provisions of La.R.S. 15:85(B), as amended through 1979, provide for an automatic release of a surety when a judgment of bond forfeiture has not been paid and the State does not attempt to execute the judgment until after the surrender and conviction of the defendant whose appearance the bond was meant to guarantee? 2.) Assuming a valid judgment of bond forfeiture has been rendered, which District Court in Orleans Parish has the power to execute that judgment, Civil District Court or Criminal District Court?

We first address the issues raised by the wording of R.S. 15:85(B). That statute reads in pertinent part:

Any judgment forfeiting an appearance bond rendered under the provisions of this section, at any time within ninety days of the mailing of the notice of forfeiture to the surety and agent of such surety who posted the bond, shall be set aside upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the District Attorney after such appearance. Upon payment of a bond forfeiture judgment by a surety or agent, such payment shall be placed in a trust account by the appropriate custodian of such forfeiture payments until expiration of the time allowed by law for the surety to return the fugitive to the jurisdiction to the court. Upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the District Attorney after such appearance, at any time within six months of the payment of the bond forfeiture judgment, the full amount of the payment shall be returned to the surety or agent making such payment and the bond forfeiture judgment shall be set aside. Such refund shall be made to the surety or agent within thirty days of the production or appearance of the defendant.

Relator takes the position that this statute automatically releases the surety where no payment of the forfeiture judgment has been made and the defendant has surrendered and been convicted. We do not agree.

The statute grants an absolute right to have a forfeiture judgment set aside if the defendant surrenders or appears within 90 days of the mailing of the notice of forfeiture required by law. It further provides for an alternate two step process by which a forfeiture judgment may be set aside. This process first requires payment of the judgment by the surety. Thereafter should the defendant surrender within 6 months of the date of payment the judgment must be set aside.

In the present case relator has not met either of the statutory criteria required before a forfeiture judgment may be set aside. The defendants did not surrender or appear within 90 days of the mailing of the notice of forfeiture. This precludes use of the first part of the statute. The defendants surrendered were tried and convicted but the forfeiture judgment was never paid. Because the judgment was never paid the provisions of R.S. 15:85(B), which require setting aside a forfeiture judgment upon surrender of the defendant within 6 months of payment of the forfeiture judgment by the surety, do not apply.

Relator argues that because the State did not attempt to execute the forfeiture judgment until after the defendants surrendered and were convicted the bond obligation was automatically dissolved. We do not agree. La.R.S. 15:89 makes it clear that the State has a 10 year prescriptive period within which to execute on the judicial mortgage which recordation of a forfeiture judgment creates. The fact that the State may choose to delay execution of that judgment until after the defendant is tried has no effect on its right to collect the judgment. It is only on the occurrence of the conditions set forth in R.S. 15:85 that a bond forfeiture judgment must be set aside. Because these conditions have not been met in this case the judgment must stand.

In analyzing the proper procedure for executing this judgment Orleans Parish presents a dilemma unique in this State. In every judicial district except Orleans the district court has both criminal and civil jurisdiction. In Orleans Parish this jurisdiction is vested in two courts, Civil District Court and Criminal District Court. The jurisdiction of these courts is mutually exclusive.

When the Constitution of 1974 was passed the provisions of the 1921 Constitution relating to the District Courts in Orleans Parish were re-enacted as part of the revised statutes and were not included in the new constitution. La.R.S. 13:1137 and 1336 now define the scope of jurisdiction for these two courts. R.S. 13:1137 provides in part; “The Civil District Court for the Parish of Orleans has the same civil jurisdiction as the district courts throughout the State, except as otherwise provided by law.” R.S. 13:1336 provides in part “That Criminal District Court for the Parish of Orleans shall have exclusive jurisdiction of the trial and punishments of all crimes, misdemeanors and offenses committed within the Parish of Orleans if the jurisdiction is not vested by law in some other court.” Thus it appears that resolution of the question at hand will depend on whether an appearance bond forfeiture is characterized as criminal or civil.

It seems clear that one who posts an appearance bond for another has entered into a suretyship agreement with the State. This is a civil contract based on an act under private signature, breach of which will lead to a money judgment against the surety. State v. Ledener, 253 La. 915, 221 So.2d 47 (1969); State v. United Bonding Co. of Indianapolis Indiana, 244 La. 716, 154 So.2d 374 (1963), and the cases cited therein. The unique division of jurisdiction in Orleans Parish does not change the nature of this obligation.

While the breach of the surety’s obligation (i.e. the non-appearance of the defendant) must necessarily occur in Criminal District Court before a criminal judge and it is this judge who must render judgment against the surety, enforcement of that judgment is a civil proceeding. Under present law the Criminal District Court in Orleans Parish is without jurisdiction to issue the civil writ of fieri facias which is required to collect the judgment. That power is vested in the Civil District Court and that is the court to which the State must turn to execute bond forfeiture judgments rendered by the Criminal District Court.

Because the jurisdiction of the District Courts in Orleans Parish is presently a matter of statutory law the legislature could grant Criminal District Court the limited civil jurisdiction necessary to execute a judgment of bond forfeiture. This would eliminate the needless expense and time which the present jurisdictional scheme imposes on the State before it can collect bond forfeiture judgments. However, that decision must be left to the wisdom of the legislature.

The Civil District Court was correct in declining to enjoin or rescind the sale. It is well established that Civil District Court has no jurisdiction, either appellate or supervisory, over Criminal District Court, Maryland National Insurance Co. v. Garrison, 233 So.2d 32, 33 (La.App. 4th Cir.1969).

For reasons outlined above we deny the writ, finding no error in the actions of the Civil District Court.

SCHOTT, J., dissents with reasons.

SCHOTT, Judge,

dissenting:

I would grant the writ and grant a preliminary injunction against the seizure and sale of relator’s property. I cannot interpret Act 786 of 1979 to require the surety to pay the amount of the bond at this point when the fugitive defendants have long been apprehended and brought to justice. The purpose of the bond was accomplished and the surety was no longer obligated to the state.


text:
    STATE of Louisiana v. Lamar R. BERTRAM.
    No. K-0913.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 27, 1983.
    Harry F. Connick, Dist. Atty., G. Fred Ours, Asst. Dist. Atty., New Orleans, for relator.
    Edward A. Haggerty, Jr., New Orleans, for respondent.
    Before BARRY, GULOTTA and KLEES, JJ.
   * * * WRIT MADE PEREMPTORY * * *

The State requests that we grant a writ and reverse the trial court’s judgment setting aside the forfeiture of defendant’s appearance bond.

Defendant, who was charged with simple burglary of an inhabited dwelling, was released on a personal surety bond. His trial began March 30, 1983 and was recessed until April 5, 1983. Defendant failed to appear for the remainder of his trial and, after a hearing, his bond was forfeited on April 11, 1983.

Defendant was arrested on April 26,1983 in Arizona, where he is incarcerated and a detainer has been filed. Defendant’s attorney filed a Motion to Set Aside Bond Forfeiture which was heard and granted on May 20, 1983. The State now challenges the judgment setting aside the forfeiture.

The procedure for forfeiting criminal bonds is in LSA-R.S. 15:85 which provides: the forfeiture of a bond secured by a personal surety may be ordered by the trial court upon motion of the district attorney when a defendant fails to appear in court at a fixed time, providing the defendant and the surety have adequate notice. However, a bond may not be forfeited where it is shown to the court’s satisfaction that the defendant could not appear because he was detained in a penitentiary or jail in another jurisdiction. LSA-R.S. 15:87. If the court, unaware of such circumstances, forfeits a bond a personal surety may, within six months of the notice of forfeiture, submit proof of the defendant’s incarceration at the time he failed to appear and have the forfeiture set aside.

In this case, however, the defendant was not incarcerated elsewhere on April 5,1983, the date his trial was scheduled in New Orleans; therefore, his case does not fall within the exemptions from forfeiture in R.S. 15:87. The only other grounds for setting aside a bond forfeiture are those delineated in LSA-R.S. 15:85(B)(3), which provides for annulment of a bond forfeiture: “... at any time within six months after mailing of notice ... upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance.”

This defendant has not surrendered himself; nor has he appeared, gone to trial, and been convicted or acquitted; nor has he appeared and the district attorney requested a continuance.

As none of the required circumstances for setting aside a bond forfeiture are present, such rescission was error. Accordingly, this writ is made peremptory; the judgment of the trial court setting aside the bond forfeiture is annulled and set aside and the original judgment forfeiting defendant’s surety bond is reinstated.


author: WILLIAMS, Judge.

text:
    JULIUS GINDI AND SONS, INC. v. E.J.W. ENTERPRISES, INC., et als.
    No. CA-0596.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 1983.
    Rehearing Denied Oct. 27, 1983.
    Russ M. Herman, Sidney F. Rothschild, New Orleans, for plaintiff-appellee.
    Herman M. Schroder, Kenneth E. Pickering, New Orleans, for defendant-appellant.
    Before GARRISON, BYRNES, and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court declaring a lease entered into between plaintiff Julius Gindi and Sons, Inc. [“Gindi”] and Louis Roussel, Jr. to be binding upon defendant E.J.W. Enterprises, Inc. [“EJW”], a successor in title of the leased property.

On July 14, 1982, plaintiff filed suit against defendants Roussel, EJW, Mutual Savings Life Insurance Co. [“Mutual”], and Mantón Land Co. [“Mantón”] seeking to have a lease it [plaintiff] entered into with Roussel declared binding upon certain third parties. The suit also sought to have EJW, the current owner of the leased property, enjoined from evicting plaintiff until the lease expired. The parties stipulated to a number of documents, depositions, and facts. On the basis of the stipulations the trial court rendered judgment in favor of plaintiff. It is from this decision that defendant EJW now appeals.

The facts of this case are for the most part stipulated to by the parties. On May 3,1973, plaintiff and Roussel entered into a lease which expired on December 31, 1979. The lease provided for a five-year extension on the same terms. On February 4, 1977, plaintiff sent a letter by certified mail to Roussel advising him of its desire to exercise the option. This notice was a timely exercise of its option. The letter was received by the receptionist in Roussel’s office who was empowered to do so.

On March 30, 1982, Roussel sold the premises to Mutual who, on June 24, 1982, sold the property to Mantón. The sale to Mutual was subject to a Purchase Agreement for the party signed by Roussel and a representative of Mantón, and Mutual bound itself to the terms of the Purchase Agreement. On June 24, 1982, Mantón exchanged the leased property for property owned by EJW. On June 29,1982, plaintiff received a letter advising it that it had a month-to-month lease and that it must vacate the premises by the end of the next month. It appears that Roussel was under the misapprehension that plaintiff had not exercised the option to renew the lease and was a tenant strictly on a month-to-month basis. In fact, the Act of Sale between Mutual and Mantón contained the following clause:

“The parties hereto take cognizance of the lease by Louis J. Roussel to Julius Gindi, Inc.... Vendor declares and warrants that the lessee therein did not exercise its option to renew said lease, but that after the original term ended on December 31,1979 continued its occupancy on a month-to-month basis.”

Gindi then filed suit to have its lease recognized as valid and binding on defendants until December 31, 1984.

Two issues are presented on appeal: (1) did the successors in title have a duty to inquire whether an encumbrance, i.e. the lease, existed on the property, and (2) was the lease between plaintiff and Roussel binding upon Roussel’s successors in title by reason of the Purchase Agreement between Roussel and Carl Clayton, on behalf of Man-ton?

I. DUTY TO INQUIRE

Gindi argues that defendant EJW had a duty to inquire into whether the renewal option had been exercised because it is evident from the face of the lease that an extension may have been exercised.

Article 2266 of the Louisiana Civil Code provides in part:

All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.

La.R.S. 9:2721 also provides:

“No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated; and neither secret claims or equities nor other matters outside the public record shall be binding on or affect such third parties.”

Plaintiff argues that the provision of the lease allowing it a five year extension should have placed a duty on defendants to inquire whether the option had been exercised. EJW argues that the duty to inquire is limited to an investigation of the public records, and, furthermore, because the notice of renewal was not recorded, it is not binding upon third parties.

If a recorded instrument contains language that would cause a third party to reasonably suspect that there is a question as to title, he must “avail himself of the means and facilities at hand to obtain knowledge of the true facts.” Brown v. Johnson, 11 So.2d 713, 716 (La.App.2d Cir.1942); see also Pittsburgh Plate Glass Co. v. Woodcock, 150 So.2d 660 (La.App.3d Cir.1963). The extent of the duty to inquire is the key issue on this appeal.

In Judice-Henry May Agency, Inc. v. Franklin, 376 So.2d 991 (La.App. 1st Cir.1979), the court considered whether an unrecorded lease was binding upon a third party purchaser when a subsequent assignment of the lease was recorded. The court held that because unrecorded acts have no legal effect on them, third parties only have to look at the public records to determine adverse claims. Those cases in which a duty to inquire was imposed required investigation Into public records. E.g., Wells v. Joseph, 234 La. 780, 101 So.2d 667 (1958).

The court relied upon the line of decisions holding that a recorded reference to an unrecorded instrument does not make it binding upon third parties. See, e.g. Roemer v. Caplis, 369 So.2d 1186 (La.App.2d Cir.) writ den. 371 So.2d 620 (La.1979); Sklar Producing Co. v. Rushing, 262 So.2d 115 (La.App.2d Cir.) writ den. 262 La. 310, 263 So.2d 47 (1972). The lessor in Judice-Hen-ry-May Agency, Inc., as plaintiff in this case, urged that a reference to an unrecorded document should require a purchaser to inquire further. The court held:

“To accept [this] contention would lead to greater distinctions as to just which unrecorded, but referred to instruments would be given effect.... “The basic public police of Louisiana is squarely behind rec-ordation. To have any effect on third parties, an instrument must be recorded. R.S. 9:2721 and Civil Code Article 2266. Third parties must consult all the public records pertaining to their transactions but need not go beyond those public records.” Id. at 993

The court concluded that the lease was not cause for further inquiry nor was it binding upon the third party purchaser.

Plaintiff relies upon Port Arthur Towing Co. v. Owens-Illinois, Inc., 352 F.Supp. 392 (W.D.La.1972). The facts in PATCO are almost identical to the ones in this case. The federal district court held that the existence of the option clause created a duty to inquire outside of the record. We believe that this decision is incorrect in view of the dictates of Louisiana law. The duty to inquire should be limited only to recorded instruments because unrecorded instruments have no effect upon third parties. Generally, a duty to inquire outside of the record would be fruitless for even if something does exist it would not be binding upon third parties.

II. PURCHASE AGREEMENT

The Purchase Agreement between Roussel and Mantón stated that the sale was made subject to existing leases. Plaintiff argues that there was no need for the lease to be recorded because by the Purchase Agreement, Mantón contractually bound itself to accept the lease. In support of this argument, plaintiff refers to the decision in Stanley v. Orkin Exterminating Co., 360 So.2d 225 (La.App. 1st Cir.1978). In Stanley, a purchaser with knowledge of an existing lease on property that he bought subject to existing leases was bound by the lease regardless of whether it was recorded. Cf. Knowles v. Wholesale Electronics Supply of Shreveport, Inc., 388 So.2d 426 (La.App.2d Cir.1980) (buyer, however, must have intent that purchase be subject to lease).

These cases are factually distinguishable from the instant case. The issue before us is whether EJW, not Mantón, is bound by the lease. The Act of Exchange between EJW and Mantón is silent on the existence of leases. As we discussed supra, the exercise of the renewal option must have been recorded to be binding upon a third party. Judice-Henry v. May Agency, Inc., supra. EJW was a third party that did not contractually accept the lease, and, therefore, is not bound by it.

For the foregoing reasons, the decision of the trial court is reversed. For the renewal of the lease between plaintiff and Roussel to have been binding upon EJW, the exercise of plaintiff’s option had to have been recorded.


author: SCHOTT, Judge.

text:
    Vero B. PUCCIO v. Mark S. FINCH, The Allstate Insurance Company, Elevating Boats, Inc. and Firemen’s Insurance Company. Gordon A. SAUSSY v. Mark S. FINCH, Allstate Insurance Company and Elevating Boats, Inc. Robert L. MILLER, Sr. and Thelma D. Miller, as Guardians of the Person and Estate of minor children, Amie Marie Overby, Robert Jerry Overby, III and Amanda Lee Overby v. Mark S. FINCH, Allstate Insurance Company, Vero B. Puccio, Wausau Insurance Company, Gordon A. Saussy and Firemen’s Fund Insurance Company. Thelma and Walton OVERBY, In her own Right and as Guardian of the Person and Estate of her minor child Alinsey Leann Overby v. Mark S. FINCH, Allstate Insurance Company, Vero B. Puccio, Wausau Insurance Company, Gordon A. Saussy and Firemen’s Fund Insurance Company (Elevating Boats, Inc. and Firemen’s Fund Insurance Co.)
    Nos. CA 0560 to CA 0563.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearing Denied July 26, 1983.
    Jaques F. Bezou, New Orleans, for plaintiff-appellant Vero B. Puccio.
    Stewart E. Niles, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiff-appellant Gordon A. Saussy.
    Roy A. Raspanti and George J. Dowd, New Orleans, for defendants-appellees Elevating Boats, Inc.
    Madison C. Moseley, Blue, Williams & Buckley, Metairie, for defendant-appellee Firemen’s Fund.
    Before GULOTTA, SCHOTT and CIAC-CIO, JJ.
   SCHOTT, Judge.

This is an appeal from a judgment granting a motion for summary judgment filed by Elevating Boats, Inc. and dismissing the suits of Gordon A. Saussy and Vero B. Puccio against it.

Appellee’s motion recited:

“.... on suggesting to the court that as it will appear from the pleadings and the certified transcript of the deposition of Mark S. Finch on file in this record, there is no genuine issue of material fact ...”

The trial memoranda of appellee and appellants referred extensively to selected excerpts from Finch’s deposition to support the respective positions as do the briefs on file in this court.

Upon initial review of the record we discovered that the deposition was not included. However, since we were under the impression that it had been available to the trial judge we asked counsel to file it in this court by stipulation under the provisions of LSA-C.C.P. Art. 2132.

Counsel have now filed the deposition, but they have also filed two additional depositions, and they recite in their stipulation that these depositions (including Finch’s) were not submitted to the trial judge prior to his ruling on the motion for summary judgment.

In Bullock v. Commercial U. Ins. Co., 397 So.2d 13 (La.App. 3rd Cir.1981) the court concluded that it lacked jurisdiction to consider “new evidence” or evidence never considered by the trial court and that Art. 2132 could not be utilized for the introduction of such new evidence. It is our function to review a judgment on the basis of what was before the trial court when the judgment was rendered. We cannot consider evidence which was never even proffered much less considered by the trial court as was Finch’s and the other depositions.

We note also the lack of a signed judgment in the record. We find only a minute entry of it. No appeal may be taken from a final judgment unless signed. C.C.P. Art. 1911.

Accordingly, the case is remanded to the trial court for further proceedings. Elevating Boats, Inc. may refile its motion for summary judgment but must provide the trial court with any depositions it relies on to support its motion.

REMANDED.

ORDER

We grant the “Motion for Clarification” filed by Fireman’s Fund Insurance Company (Fireman’s) as a motion for rehearing.

Plaintiff, Vero B. Puccio, appealed not only from the summary judgment dismissing his suit against Elevating Boats, Inc. but also a summary judgment dismissing his suit against Fireman’s. In our original opinion we overlooked the latter appeal.

Fireman’s is the liability insurer of Gordon A. Saussy and was made defendant by Puccio on the allegation that Fireman’s afforded uninsured motorists coverage to Puccio along with the uninsured motorists coverage afforded Puccio under his own policy of liability insurance issued by Employers of Wausau.

In his brief to this court Puccio specified but one error, that the summary judgment in favor of Elevating Boats was erroneously granted. He offered no argument challenging the validity of the Fireman’s judgment and made no mention of it.

Accordingly, the judgment dismissing plaintiff’s suit against Fireman’s Fund Insurance Company is affirmed. In all other respects our original opinion remains unchanged.


author: HALL, Judge. HALL, Judge.

text:
    Roy McCLAIN, Jr., Plaintiff-Appellee, v. GENERAL AGENTS INSURANCE COMPANY OF AMERICA, INC., Defendant-Appellant. GENERAL AGENTS INSURANCE COMPANY OF AMERICA, INC., Plaintiff-Appellant, v. Roy McCLAIN, Jr., and Mrs. Henrietta Dunn McClain, Defendants-Appellees.
    Nos. 15442-CA, 15443-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1983.
    On Rehearing Sept. 20, 1983.
    Writ Denied Nov. 28, 1983.

      Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for Gen. Agents Ins. Co. of America, Inc.
    Ellis & Ellis by Carey J. Ellis, Jr., Ray-ville, for Roy McClain, Jr., and Mrs. Henrietta Dunn McClain.
    Before HALL, SEXTON and NORRIS, JJ.
   HALL, Judge.

A building owned and operated by Roy McClain, Jr. as the Cozy Spot lounge and cafe was completely destroyed by fire on November 1, 1980. McClain sued General Agents Insurance Company of America to recover $49,750 allegedly due under a fire insurance policy issued by General Agents to McClain, plus penalties and attorney fees in accordance with LSA-R.S. 22:658. The insurance company denied liability alleging that McClain intentionally set fire to his building. Alternatively, in the event it was found liable for the insurance proceeds, General Agents sought credit for $46,303.51 which it paid under the loss payable clause of the policy to the First Republic Bank of Rayville which held mortgages on the Cozy Spot property. General Agents, which took assignments of the bank’s notes and mortgages, filed a separate suit against McClain seeking to recover the amount paid to the bank and to foreclose on the mortgages.

After trial of the consolidated suits, pursuant to written reasons for judgment, the district court found that the insurance company had failed to establish its arson defense and rendered judgment in favor of McClain for the amount of the insurance policy, subject to a credit for the amount paid by the insurance company to the bank conditioned on cancellation of the notes and mortgages. The district court also found the insurer arbitrary and capricious in failing to pay under the terms of the policy, and awarded McClain 12 percent of $49,750 in penalties and $5,000 in attorney fees with legal interest thereon from date of judicial demand. The insurance company’s suit was dismissed.

General Agents appealed, specifying the following errors:

(1) The trial court erred in its conclusion that the insurance company failed to prove arson;

(2) Alternatively, the trial court erred in awarding legal interest on the entire amount of the policy, subject to the credit for payment made to the loss payee, and should have awarded legal interest only on the balance due on the policy;

(3) Alternatively, the trial court erred in determining that appellant was arbitrary and capricious, or without probable cause, in refusing to pay the claim; and

(4) Alternatively, the trial court erred in its determination of the amount of the penalty, and the date from which the penalties and attorney fees should bear legal interest.

McClain answered the appeal, asking that the award of attorney fees be increased to $10,000.

For the reasons set forth in this opinion we amend the judgment to eliminate the award of penalties and attorney fees, and otherwise affirm.

Arson Defense

To sustain the defense of arson, the insurer has the burden of proving by a preponderance of the evidence that the fire was of incendiary origin and that the insured was responsible for it. Proof may be, and invariably is, by circumstantial evidence. When proof is circumstantial, the evidence must be so convincing that it will sustain no other reasonable hypothesis but that the insured was responsible for the fire. Rist v. Commercial Union Insurance Company, 376 So.2d 113 (La.1979); Sumrall v. Providence Washington Insurance Company, 221 La. 633, 60 So.2d 68 (1952); Wallace v. State Farm Fire & Casualty Insurance Company, 345 So.2d 1004 (La.App. 2d Cir.1977).

The appellant contends that it bore the burden of proving its arson defense by establishing that McClain was in dire financial circumstances and had motive to set the fire, that McClain acted suspiciously on the day of the fire and had the opportunity to set the fire, and that the fire was incendiary in origin as shown by the expert testimony.

The evidence establishes that McClain, who also owned rental property and other real estate, owed a substantial amount of money to the bank and other creditors, and that he was two and one-half months in arrears on his $1,000 per month payments to the bank. By copies of income tax returns, it was shown that the Cozy Spot cafe had lost money over the past several years. McClain stood to profit by the fire and collection of the insurance proceeds and consequently it can be said that he had motive to set the fire. However, the effect of this evidence is minimized by the fact that McClain’s financial situation at the time of the fire was not unusual, he was chronically in arrears on his payments to the bank, and yet he made sufficient payments to satisfy the bank and no foreclosure action against him was pending or contemplated.

It was established that McClain removed some items such as a washer and dryer and a television set from the building on the day of the fire. It was further established, however, that McClain was in the process of refurbishing the place of business and that numerous other appliances, tables, chairs, a pool table, and other items were not removed from the building, and were destroyed in the fire.

McClain had the opportunity to set the fire. The fire started between 8:00 and 9:00 in the evening. In the late afternoon or early evening McClain had gone with his wife to a wiener roast in the neighborhood and then McClain returned alone to his home which is located next to the building that burned. According to his testimony, he was at home alone when notified by a neighbor that the building was on fire.

Nevertheless, as concluded by the trial court, the evidence presented by the insurance company was insufficient to establish that the fire was incendiary in origin. In its effort to prove arson the appellant relied primarily on the testimony of its expert witness, William Schulthies, a mechanical engineer and qualified fire origin analyst from California. The expert investigated the scene of the fire about a week after its occurrence. His examination of the remains of the building was concentrated almost entirely to the north 40 percent of the building where he determined that the fire had been most intense. Schulthies found four areas of the concrete slab at the north end of the building which showed strong evidence of spalling (a breakdown of the concrete by extreme heat caused by the heat boiling out moisture from the concrete and causing a disintegration leaving the area with a scalped-out type of appearance). The four separate areas where spalling was evident were under a pool table, under a steel desk in the office area, near a one-gallon can, and near a natural gas line. The witness attributed the spalling to the presence of an accelerant because of the shape of the spalled areas which were nonsymetrical as if a liquid had been poured or spilled on the slab. The witness explained that spalling caused by debris falling to the concrete surface would reflect the shape of the debris, such as a board, which was not the case here. Schulthies also found two gas pipes to which appliances were not attached and which he concluded were open at the time of the fire. Schulthies concluded that the fire was started by ignition of the accel-erants on the concrete slab and was aided by the emission of natural gas.

The expert witness’s conclusion that the fire started at the north end of the building was refuted by the testimony of several eyewitnesses to the fire. . Two young neighbors who first discovered the fire saw smoke and sparks in the south part of the building, in which was located the cafe and an upstairs dancing area. Two other neighbors testified that the south end and not the north end of the building was burning when they first saw it. The Rayville fire chief testified that the fire began in the south end of the building and that nothing he saw at the fire scene aroused his suspicion. A volunteer fireman who helped fight the fire testified that when he entered the building the flames were at the south end and not the north end. The testimony of the several eyewitnesses that flames were first observed in the south end of the building belies the expert’s conclusion that the fire started at the north end of the building.

Further undermining the validity of the expert’s conclusions is the fact that he made no detailed examination of the south 60 percent of the building. The expert went by the scene of the fire the day before trial, some two years after the fire, and for the first time noticed evidence of spalling in numerous areas at the south end of the building. Although the expert disclaimed any significance to these findings, it would seem that spalling throughout the building detracts from the significance attributed by the expert to the four spalled areas at the north end of the building. As admitted by the expert, spalling can be caused by intense heat without the presence of an accel-erant.

The trial court correctly concluded that the insurance company failed to prove by a preponderance of the evidence that the fire was incendiary in origin, the threshold basis for its arson defense.

Penalties and Attorney Fees

Although the evidence was not sufficient to establish the arson defense, there was considerable evidence justifying assertion and litigation of the defense by the insurance company. After consultation between the deputy fire marshal and the district attorney, a bill of information charging McClain with arson was filed. There was evidence of motive for arson and of the opportunity for the insured to have started the fire. There was some objective evidence of arson, and the insurance company had before it the opinions of its experienced adjuster and the expert witness that the fire was intentionally set.

LSA-R.S. 22:658 is penal in nature and therefore must be strictly construed. Penalties and attorney fees are not assessed unless it is clearly shown that the insurer was arbitrary, capricious, and without probable cause in refusing to pay. Thomas v. McInnis Brothers Construction, Inc., 401 So.2d 522 (La.App. 2d Cir.1981); Wallace v. State Farm Fire & Casualty Company, supra.

Considering the circumstances of this case the insurer’s failure to pay the proceeds of the fire insurance policy was not arbitrary, capricious, or without probable cause. The insured is not entitled to penalties and attorney fees.

Because we find that the insured is not entitled to penalties and attorney fees, we need not address the issues concerning their computation or the calculation of interest thereon, or the insured’s prayer for an increase in attorney fees.

Decree

The judgment of the district court is amended to delete the award to Roy McClain, Jr. of 12 percent penalties and $5,000 attorney fees, and his demand for penalties and attorney fees is rejected. The judgments in these consolidated cases are otherwise affirmed. All costs of the appeals are assessed against the appellant.

Amended, and as amended, affirmed.

ON REHEARING

Before PRICE, HALL, MARVIN, SEXTON and NORRIS, JJ.

HALL, Judge.

A rehearing was granted in this case limited to consideration of the defendant insurance company’s alternative argument that the trial court erred in awarding legal interest on the entire amount of the policy, subject to credit for the payment made to the loss payee, and that legal interest should have been awarded only on the balance due after subtracting the payment to the mortgagee. The original opinion failed to specifically address this issue.

The policy was for $50,000, less a $250 deductible. The policy contains a mortgage clause naming First Republic Bank as mortgagee and providing for payment of the proceeds of the policy to the mortgagee as its interest may appear. After the fire the insurance company paid $46,303.51 to the bank and took assignments of the bank’s notes and mortgages. The insurance company filed suit against its insured, McClain, seeking to recover the amount paid to the bank, plus the conventional interest stipulated in the notes and attorney fees, and to foreclose on the mortgages.

The district court rendered judgment in favor of McClain for the full amount due under the terms of the insurance policy, $49,750, subject to a credit for the amount paid by the insurance company to the bank, conditioned upon cancellation of the notes and mortgages. In its written reasons for judgment the trial court expressly rejected the insurance company’s argument that it should be required to pay legal interest from judicial demand only on the difference of $3,446.49 owed to the insured. Although the judgment is not entirely clear, it is apparent that in accordance with the reasons for judgment it is intended that the credit for the payment to the bank be applied as of the date of cancellation of the notes and mortgages, the effect of which is to cast the insurance company for legal interest on the full amount of the policy until such time as the notes and mortgages are canceled.

The insurance company contends that to allow McClain to recover legal interest on the full amount of the policy would be to create a “windfall” in his favor because he will have the benefit of having had the bank indebtedness satisfied as of the date payment was made by the insurance company to the bank, stopping the running of conventional interest on the loans, and yet will also recover legal interest which at this time exceeds $10,000. The insurance company also argues that since it made payment to the bank it has not had the use of the money paid and should not be penalized by having to pay legal interest on that sum. McClain argues that the insurance company did not pay the mortgage indebtedness but only purchased the notes and mortgages from the bank, leaving his property encumbered, and that legal interest should accrue on the full amount due under the policy until the notes and mortgages are canceled.

The parties cite several cases involving similar situations in which the judgments seem to support their respective positions. See Wells v. Twin City Fire Insurance Company, 239 La. 662, 119 So.2d 501 (La.1960); Wallace v. State Farm Fire & Cas. Ins. Co., 345 So.2d 1004 (La.App. 2d Cir.1977); Baghramain v. MFA Mutual Insurance Company, 315 So.2d 849 (La.App. 3d Cir.1975); Republic Ins. Co. v. American Public Life Ins. Co., 246 So.2d 410 (La.App. 1st Cir.1971); Stevenson v. Central National Ins. Co. of Omaha, Neb., 239 So.2d 659 (La.App. 1st Cir.1970); Headrick v. Pennsylvania Millers Mutual Ins. Co., 232 So.2d 319 (La. App. 3d Cir.1970); and Martin v. Home Ins. Co., 16 La.App. 216, 133 So. 773 (2d Cir.1931). The judgments in most of the cited cases are not entirely clear as to the manner in which payments to mortgagees under loss payable clauses were to be credited or the manner in which legal interest was to be calculated, and, in any event, it appears that in none of the cited cases was the issue now presented directly addressed.

The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more. LSA-C.C. Art. 1935. All debts shall bear interest at the legal rate from the time they become due, unless otherwise stipulated. LSA-C.C. Art. 1938.

The defendant insurance company contracted with the insured to insure his property for $50,000 and in the event of a covered loss to pay the proceeds of the policy, less the deductible amount, to the insured or for his account to the mortgagee named in the policy, as the mortgagee’s interest might appear. The insurance company’s obligation or debt, after the loss, was for the payment of money for the insured’s account to the bank in discharge of the mortgage indebtedness owed.

Instead of paying the bank for the insured’s account in discharge of the indebtedness owed by the insured to the bank, the insurance company purchased the notes and mortgages from the bank. This left the insured in precisely the same position as he was prior to payment by the insurance company to the bank. He derived no present benefit whatsoever from the payment made by the insurance company to the bank at the time of the payment. He remained subject to suit for the balance due on the notes and was in fact sued by the insurance company on the notes and for foreclosure of the mortgages. His property remained encumbered by the mortgages, limiting his use of the insured property, specifically in that he was not able to obtain a new mortgage loan to rebuild the destroyed building or for any other purpose. He was, in effect, deprived of the use of the money owed by the insurance company under the terms of the policy during the pendency of this suit through the date of satisfaction and cancellation of the notes and mortgage indebtedness.

It begs the point to argue that the effect of the judgment in this case is that the insured will not have had to pay conventional interest to the bank on the mortgage indebtedness after the date the insurance company bought the notes and mortgages from the bank. Had the insurance company complied with its obligation to discharge the mortgage loan after the fire, the insured would not have had to pay conventional interest and his property would have been unencumbered. As it is, his property has remained encumbered and to this extent he has suffered loss by reason of the insurance company’s failure to pay its debt. During the pendency of this suit the insurance company has delayed in the performance of its obligation to pay money for the insured’s account. Under LSA-C.C. Art. 1935, interest is due for this delay in performance of the obligation to pay money without proof of loss by the creditor, although it is clear in this ease that the creditor/insured has suffered loss as previously explained, and the damages in the form of legal interest awarded do not amount to a “windfall”.

It also begs the point to argue that the insurance company has not had the use of the money because it paid the amount owed to the bank. The insurance company bought the notes and mortgages and sought to recover from the insured the amount of the notes plus conventional interest. It traded one asset, money, for another asset, the notes, and in this sense continued to have the use of the money owed under the insurance contract. The decision to purchase the notes from the bank rather than to pay the bank the amount of the indebtedness for the insured’s benefit was a business decision on the part of the insurance company, and was made at its own risk.

The insured prayed for legal interest from judicial demand. His answer to the appeal does not question the commencement date and he makes no argument on appeal that interest should commence at any earlier date. Accordingly, the commencement date for legal interest is not at issue and has not been considered by this court. Compare Trico Services Corp. v. Houston General Ins., 414 So.2d 1313 (La. App. 2d Cir.1982).

For the reasons assigned, the original opinion and decision of this court affirming that part of the judgment of the district court which awarded legal interest on the entire proceeds of the insurance policy from date of judicial demand until cancellation of the notes and mortgages assigned by the bank to the defendant insurance company is reinstated and made the final judgment of this court.