text:
    STATE of Louisiana v. Jimmy C. WINGO
    No. 83-KK-1902.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Jitnmy C. Wingo, applying for writ of review and stay order. Fifteenth Judicial District Court, Parish of Lafayette. No. 48202.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Ivory M. LEWIS, Jr.
    No. 83-KH-1824.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Ivory M. Lewis, Jr., applying for writ of mandamus. Parish of Orleans. No. 295-440.

Granted for the sole purpose of transferring to the Court of Appeal, 4th Circuit.


author: STOKER, Judge. PER CURIAM.

text:
    John MORRIS, Plaintiff-Appellant, v. SCHLUMBERGER, LTD., et al., Defendants-Appellees.
    No. 82-770.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 1983.
    On Rehearing Aug. 1, 1983.
    On Rehearing Sept. 6, 1983.
    Writ Denied Nov. 18, 1983.
    McHale, Bufkin & Dees, Louis D. Bufkin and Michael K. Dees, Lake Charles, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Bert M. Cass, Jr., New Orleans, Scofield, Bergstedt, Gerard, Mount & Vernon, Richard E. Gerard, Jones, Tete, Nolen, Hanchey, Swift & Spears, Gregory Massey and Hunter Lundy, Lake Charles, for defendants-appellees.
    Before GUIDRY, STOKER and KNOLL, JJ.
   STOKER, Judge.

This is an appeal relative to a claim brought in state court pursuant to the Jones Act and general maritime law. The jury awarded the plaintiff $150,000 and apportioned the fault causing plaintiff’s injury on a percentage basis among three defendants. The jury found that Transworld Drilling Company (Transworld), plaintiff’s employer, was fifty percent at fault, Phillips Petroleum Company (Phillips) was forty percent at fault, and Schlumberger, Ltd., was ten percent at fault. Before trial Schlumberger, Ltd., and Halliburton Company, both originally named as defendants, settled with the plaintiffs and were voluntarily dismissed. It is not clear from the record whether another defendant, Gilley & Associates, Inc., was dismissed, but the defendant was not mentioned in the verdict or the judgment. The trial court signed a judgment against Transworld and Phillips “in solido” for $135,000 ($150,000 less the ten percent attributable to Schlumberger, Ltd.).

APPEALS

The plaintiff appeals, asserting that the failure of the trial court to grant pre-judgment interest on the award was error. Transworld and Phillips answered the appeal urging that the trial court erred in granting legal interest from the date the jury rendered its verdict. They assert that the correct date from which to begin the accrual of legal interest is from the date judgment was signed. Transworld and Phillips also contend in their answer to the appeal that the trial court erred in casting those defendants liable “in solido” in that they were liable to plaintiff only in proportion to their respective degrees of fault.

PRE-JUDGMENT INTEREST

Plaintiff contends that in cases of claims under general maritime law the award of pre-judgment interest lies within the discretion of the judge, and that such interest should not be denied in the absence of some peculiar circumstance. However, in addition to asserting a claim under general maritime law and the doctrine of unseaworthiness against defendant Transworld, plaintiff’s claim was also brought pursuant to the Jones Act. Against Phillips, the plaintiff asserted a claim for negligence under general maritime law.

Regarding the claim arising under the Jones Act, this court faced a similar question of law in Morris v. Transworld Drilling Co., 365 So.2d 46 (La.App. 3rd Cir. 1978). In that case this court found that the federal law as to interest on a Jones Act judgment is substantive and is therefore controlling and that, in a Jones Act case tried at law (rather than at admiralty), pre-judgment interest is not available. See cases cited therein. See also Rains v. Diamond M. Company, 396 So.2d 306 (La.App.1981), writ denied 396 So.2d 623 (La.1981), United States cert. denied 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). This case differs from the cited cases in that this is not a pure Jones Act claim against Tran-sworld. Plaintiff also sues under the doctrine of unseaworthiness and general maritime law. We conclude that pre-judgment interest cannot be awarded on the judgment against Transworld although it is joined with a general maritime law claim.

In Barton v. Zapata Offshore Company, 397 F.Supp. 778 (E.D.La., 1975), the court rejected the notion that an unseaworthiness claim when combined with a Jones Act claim retains its status as a claim “at law” and is therefore governed by normal admiralty principles which allow prejudgment interest to be awarded. At page 780 the court stated:

“The Supreme Court’s opinion in Fitzgerald v. United States Lines Co., 1963, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720, does not warrant an interest award here. Plaintiff’s counsel contends Fitzgerald did not say that an unseaworthiness claim becomes a claim “at law” when joined with a Jones Act claim and sent to a jury; therefore the unseaworthiness claim should be governed by normal admiralty principles, which allow prejudgment interest to be awarded.
“There might be merit to this analysis if either the jury had denied recovery under the Jones Act and found unseaworthiness, or if there were some element of admiralty damage not allowable under the Jones Act. But here the verdict found the employer liable under the Jones Act as well as the general maritime law; the elements and amounts of damage claimed were identical. If the court may not award prejudgment interest on the Jones Act claim, there is no separate “pure” admiralty item on which to allow interest. Furthermore, the reason given by the court in Moore-McCormack Lines, Inc. v. Richardson [295 F.2d 538 (2nd Cir. (1961)], supra, for denying a right to prejudgment interest in jury-tried Jones Act cases — that the jury considers the delay in making an award — would apply with equal force to a jury-tried unseaworthiness claim. In sum, the plaintiff may not claim the benefits of a jury trial on an unseaworthiness claim completely merged with a Jones Act claim as to quantum and then attempt to unscramble the verdict after he prevails.”

In the instant case, the verdict sheet returned by the jury does not indicate whether Transworld, the employer, was found liable under the Jones Act or general maritime law. The verdict merely finds Tran-sworld “at fault”. Plaintiff’s petition does not apportion damages among the claims. Thus, there are no “pure” admiralty elements which allow an award of pre-judgment interest. The plaintiff is not entitled to pre-judgment interest as to the portion of the judgment representing Transworld’s liability.

We also conclude that plaintiff may not be granted pre-judgment interest against Phillips because the parties failed to submit this question to the jury. Whether to grant pre-judgment interest is a question of fact, and if it is not reserved to the court and is not submitted to the jury, it may not be granted by the court. Havis v. Petroleum Helicopters, Inc., 664 F.2d 54 (5th Cir.1981) and cases cited therein. Havis involved a diversity action brought pursuant to general maritime law only and tried to a jury. The issue of pre-judgment interest was never submitted to the jury nor reserved to the court even though the granting of pre-judgment interest is a factual issue. The purpose for allowing pre-judgment interest is “maintaining whole the damages granted a claimant”. Havis v. Petroleum Helicopters, Inc., supra, at page 55.

As stated above, the granting of prejudgment interest in these cases is a matter of federal substantive law. The purpose of the federal courts in allowing such interest is to compensate the claimant. The issue is one of fact and should have been presented to the jury for its consideration. The trial court did not err in refusing to grant prejudgment interest.

LEGAL INTEREST

The trial judge signed the judgment on September 17, 1982, and granted legal interest from June 29,1982, the date the jury rendered its verdict. If the trial judge intended to give pre-judgment interest he was in error, as discussed above. If the trial court intended to award interest from the date of judgment, the question becomes was the “date of judgment” the date the jury rendered its verdict or the date the judgment was signed?

Title 28 U.S.C. section 1961 provides as follows:

“Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the-entry of the judgment, at the rate allowed by State law.” (Emphasis added).

This statute provides for interest to run from “entry of judgment”. Under Louisiana Law, there is no statute which straightforwardly decrees when post-judgment interest begins to run. However, several statutory provisions in Book II, Title VI, Chapter 3, “Rendition”, of the Louisiana Code of Civil Procedure, indicate that the definitive point in time regarding the effectiveness of final judgments is the date that the judgment is signed by the trial judge. The statutory provisions are as follows:

“Art. 1911. Final judgments; signing; appeals
“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”
“Art. 1912. Final judgment; multi-parish districts, signing in any parish in the state
“A final judgment may be signed in any parish within the state and shall be sent to the clerk of the parish in which the case is pending.”
* * * * * *
“Art. 1915. Partial judgment
“A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or in-terveners;
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969;
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969; or
(4) Renders judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
“If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.”

The date of the sighing of the judgment is the date which begins the delays for the taking of appeals, and has been used by courts to determine the date from which prescription, execution, revival of judgments, and other rights arise. Carpenter v. Travelers Insurance Co., 402 So.2d 282 (La.App. 3rd Cir.1981), Adams v. Ross, 300 So.2d 192 (La.App. 1st Cir.1974), Broyles v. Broyles, 209 So.2d 60 (La.App. 1st Cir.1968), Sellers v. Continental Oil Co., 188 So.2d 466 (La.App. 3rd Cir.1966), Viator v. Heintz, 201 La. 884, 10 So.2d 690 (La.1942). Thus, even though the chapter is headed “Rendition” (which in common terminology would mean stating or declaring the judgment of the court and which may be said to be the equivalent of the rendering of the verdict by the jury) the date of the signing of the judgment is the date that triggers the variety of post-judgment actions that a party may take.

We conclude that the trial court erred in granting legal interest from the date of the jury verdict, and it should have granted legal interest from the date the judgment was signed.

SOLIDARY LIABILITY

Phillips and Transworld contend the court erred in casting them liable in solido and cite several cases to support the proposition that the federal law on the matter is substantive, controlling, and does not allow solidary liability.

In Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979) the U.S. Fifth Circuit held the reasoning of the U.S. Supreme Court in United States v. Reliable Transfer Company, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), which applied the doctrine of comparative negligence in a maritime collision case, to be equally applicable in a non-collision personal injury case. Leger went on to hold that a non-settling party would not be able to reduce the plaintiff’s recovery by the value of the settlement. In Reed v. Pool Offshore Company, 521 F.Supp. 324, 326 (W.D.La.1981), the court mathematically applied the doctrine of comparative negligence to joint tort-fea-sors.

These cases and the others cited by defendants-appellants give examples of defendants being held liable for their proportionate percentages of fault. However, this does not mean a plaintiff may only recover from any defendant that defendant’s proportionate liability amount.

As a general rule a judgment against two or more defendants decides nothing as to their rights or liabilities inter sese, but only their liability to plaintiff. 49 C.J.S. § 440c, page 872. While each wrongdoer may be primarily responsible for only its portion of the total amount of damages, if the plaintiff cannot recover from one of them, the other or others must respond for the full amount of damages. 2 C.J.S. § 280, page 407, American Independent Oil Company v. Alkaid, 289 F.Supp. 329 (S.D.N.Y.1967), Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir.1968), cert. denied, 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444 and Doyle v. United States, 441 F.Supp. 701 (D.S.C., 1977).

Although referred to as having “joint and several liability” in the cases decided above, solidary obligors have essentially the same rights and obligations, including contribution, as the examples of those cases. See 34 La.Law Review 231, foot notes 12-15, and Civil Code articles cited therein.

In view of the foregoing, the trial court did not err in casting the defendants liable in solido.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed, except insofar as it provides for legal interest on the judgment from June 29,1982. The judgment is hereby amended to provide for legal interest on the award from September 17, 1982. Costs are to be paid one-half by plaintiff and one-half by Transworld and Phillips.

AMENDED AND AFFIRMED AS AMENDED.

ON REHEARING

PER CURIAM.

We granted a rehearing in this case limited to the issue as to whether pre-judgment interest is allowable with respect to plaintiff’s general maritime action against Phillips Petroleum Company. In our opinion on original hearing we held that pre-judgment interest was not allowable in this case on the basis of expressions in Havis v. Petroleum Helicopters, Inc., 664 F.2d 54 (5th Cir.1981). We held that in this case pre-judgment interest, being a factual issue, could not be allowed because it was not-submitted to the jury and was not reserved to the trial judge.

In his application for rehearing plaintiff, John Morris, asserts that the opinion in Havis as cited above is not the final holding in that case. Morris advised us that the United States Court of Appeals for the Fifth Circuit later corrected its opinion published as cited above (dated December 14, 1981 as amended on denial of rehearing on February 5, 1982) and allowed pre-judgment interest. We were further advised that the correcting opinion of the Fifth Circuit was designated as not to be published. With the application for rehearing plaintiff furnished us with a duplicated copy of what purports to be a correcting opinion dated September 13, 1982 which is stamped “DO NOT PUBLISH.” The opinion appears to be certified, but we have not been furnished with a copy of the correcting opinion of December 13, 1982, with an original certification.

We do not trouble ourselves in this case as to what effect we should give to the unpublished opinion. Should we give it full credence, our original opinion would not be altered. We think the expressions of law in the original Havis opinion are valid, although we concede that the result reached in Havis, both in the published original opinion and supplemental unpublished opinion, should be reviewed for clarification with respect to our views and holding.

In this case before us we have held that pre-judgment interest could not be allowed as to Transworld Drilling Company because John Morris' action against that company was brought pursuant to the Jones Act as well as under the general maritime law and the doctrine of unseaworthiness. The action against Phillips was not laid under the Jones Act and was not governed by the law disallowing pre-judgment interest in Jones Act cases reviewed by us in our opinion on original hearing.

It seems to be clear enough that in admiralty matters other than Jones Act cases pre-judgment interest is allowable and usually is awarded. In the published Havis opinion the Fifth Circuit stated:

“[1] We begin with the fundamental principle that an Admiralty Court “quite clearly has power to award pre-judgment interest where such is necessary to maintain whole the damages granted a claimant”, Haynes v. Rederi A/S Aladdin, 362 F.2d 345 (5 Cir., 1966). It has been repeatedly held that the exercise of that power ordinarily rests within the sound discretion of the trial court, Ibid at 351; Canova v. The Travelers Insurance Company, 406 F.2d 410 (5 Cir., 1969); National Marine Service, Inc. v. Talley, 348 F.2d 589 (5 Cir., 1969). As Rederi points out, however, the basis for that discretion is the necessity for “maintaining whole the damages granted a claimant”, which obviously is a factual issue.
The problem in the case now before us is that in submitting the case to the jury as the trier of fact, nobody said anything about pre-judgment interest. No evidence and no instructions were offered on the subject. Nothing about the rate of interest came up until after the jurors had been discharged, at which time the trial judge, not the jury, assessed the rate. Quoting a favorite phrase of the late Chief Judge Hutcheson, “This will not do”.
[2] We agree with the rationale set forth in a similar case by the First Circuit in Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1052, 1053 (1973). It was there held, after appropriate consideration of the precedents, that where a maritime cause of action is tried solely to a jury which has been demanded under the exercise of diversity jurisdiction the grant or denial of pre-judgment interest must be submitted to the jury.”

Based on the exposition of law quoted from Havis above, we deem our holding on original hearing to be correct. In the case before us the issue of pre-judgment interest was not submitted to the jury and, sub silentio at least, the trial judge refused to grant it. Therefore, we adhere to our original opinion.

The import of the quoted language from Havis is that, although pre-judgment interest may be allowable in certain admiralty cases, the decision to do so or not is up to the jury — unless the question is reserved to the court. Another panel of this court reached this same result based on Havis in Ellender v. Texaco, Inc., 425 So.2d 291 (La.App. 3rd Cir.1983).

On behalf of John Morris in this rehearing, appellant’s brief focuses on such cases as Benoit v. Fireman’s Fund Insurance Co., 361 So.2d 1332 (La.App. 3rd Cir.1978) which relied on Canova v. Travelers Insurance Company, 406 F.2d 410 (5th Cir.1969), writ denied 396 U.S. 832, 90 S.Ct. 88, 24 L.Ed.2d 84 (1969). We find nothing in those cases in conflict with the rule stated in Havis quoted above. Also we find nothing contrary to that rule in Brown v. Aggie & Millie, Inc., 485 F.2d 1293 (5th Cir.1973); Villaneuva Compania Naviera, S.A., 658 F.2d 103, 104 (3rd Cir.1981) or Hebert v. Diamond M. Co., 385 So.2d 410 (La.App. 1st Cir.1980).

In Benoit v. Fireman’s Fund Insurance Co., supra, we said:

The final matter in this case deals with the award of interest on the judgment. The trial judge cast defendants for legal interest from the date of judicial demand. In the concluding remarks contained in their original and supplemental briefs, defendants maintain that interest should run from the date of the entry of the judgment. In maritime law, the time at which interest begins to run rests within the discretion of the trial court. Canova v. Travelers Insurance Company, 406 F.2d 410 (C.A.5th Cir.1969), writ denied 396 U.S. 832, 90 S.Ct. 88, 24 L.Ed.2d 84 (1969).

The precise point concerning the jury function discussed in Havis was not at issue in Benoit or any other case cited on behalf of plaintiff-appellant.

Under the subject of Admiralty in American Jurisprudence Second the following principle is stated: “The general rule in admiralty is that interest may be allowed as part of the damages, but there is no absolute right to interest, it being discretionary with the tribunal, whether judge or jury, that passes on the matter.” 2 Am.Jur.2d, Admiralty, Section 213. We think that the expression quoted from Benoit above means that (in a proper case) the matter of prejudgment interest is within the discretion of the trier of fact and is not a judge function as distinguished from a jury function. As we shall show, it is a jury function.

We now turn to a discussion of Havis from the point of view of what it decreed. We do so simply in the interest of clarification based on what we appreciate to be a proper understanding of Havis. In this connection any expression by us in our opinion on original hearing concerning Havis -contrary to what we now say is amended accordingly.

In the published opinion in Havis as amended February 5, 1982 (664 F.2d 54), the issue.was not whether pre-judgment interest should be granted or whether the trial court was empowered to grant such interest. According to the opinion in Havis the trial court did award pre-judgment interest in a jury case. The complaint on appeal was not that the trial judge erred in awarding this interest, but rather that he fixed the rate at ten percent rather than seven percent, which appellant thought should be the proper rate. In making the award, the District Court’s judgment specified that the interest should run from date of judicial demand. On appeal the Fifth Circuit in 664 F.2d 54 stated “under Louisiana law the plaintiff was entitled to interest from the date of judgment at the rate of seven percent.” (Emphasis added.) It is reasonably clear that the Fifth Circuit’s reference to “date of judgment” was inadvertent and should have read “date of judicial demand” as the District Court had provided. We are fortified in this view by the holding in what the appellant contends is the unpublished correcting opinion, previously referred to, by the Fifth Circuit, rendered September 13, 1982 which we attach as Appendix I to this opinion on rehearing.

As we view the Havis case, the discussion of pre-judgment interest, being a jury question and not in the trial court’s authority unless reserved, was perhaps not necessary to the opinion. It appears to be a general discussion of law which was not given in support of the action taken. Also, if the court had not referred to “interest from the date of judgment,” the follow-up correcting opinion of September 13, 1982 would not have been necessary at all.

In summary, we adhere to our opinion and judgment rendered on original hearing. The discussion of law contained in the Havis opinion in 664 F.2d 54 may be dicta insofar as that case is concerned, but we think it is nevertheless a correct statement of law which we must follow. Canova v. Travelers Insurance Company, supra.

In maritime cases the discretion to allow or disallow pre-judgment interest must be based on the circumstances of the particular case. This point is discussed in Barton v. Zapata Offshore Company, 397 F.Supp. 778 (E.D.La.1975) in which Judge Rubin referred to and quoted from Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2nd Cir.1961). In Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir.1980) the Fifth Circuit stated: “Whether such circumstances exist is a question of fact, and the standard to be applied is the ‘clearly erroneous’ standard.” In Barton v. Zapata Offshore Company (in which the parties agreed to submit the issue of prejudgment interest to the court rather than the jury), the court denied pre-judgment damages. We quoted from that case in our opinion on original hearing. Here we take particular note of a portion of the quoted language:

“Furthermore, the reason given by the court in Moore-McCormack Lines, Inc. v. Richardson, supra, for denying a right to prejudgment interest in jury-tried Jones Act cases — that the jury considers the delay in making an award — would apply with equal force to a jury-tried unseaworthiness claim. In sum, the plaintiff may not claim the benefits of a jury trial on an unseaworthiness claim completely merged with a Jones Act claim as to quantum and then attempt to unscramble the verdict after he prevails.”

AFFIRMED ON REHEARING.

APPENDIX I

Text of opinion dated September 13, 1982, purporting to be an unpublished opinion by the United States Court of Appeal for the Fifth Circuit supplementing the opinion in Havis v. Petroleum Helicopter, Inc., 664 F.2d 54 (5th Cir.1981) which we include here, not as authority, but solely as information germane to our opinion on rehearing:

“It was clearly the intention of this court to allow the plaintiff interest on the judgment from the date of judicial demand at the rate of 7% per annum, reducing the interest rate from 10%, allowed by the district judge, to 7%, but making no other change in the judgment. Therefore, in the court’s opinion, rendered per curiam, on December 14, 1981, the only change made in the judgment was to reduce the rate of interest. The purpose of the later per curiam, dated February 5, 1982, was to allow the defendant credit for the amount already paid, that is, interest at the rate of 7% per annum from the date of judgment. This left interest due and owing at the rate of 7% per annum from the date of judicial demand until the date of judgment. The trial court’s later judgment, dated March 10, 1982, fixing interest at the rate of 7% per annum from date of judicial demand until paid was in conformity with the mandate of this court. Accordingly, the judgment is AFFIRMED.”


author: SCHOTT, Judge. WARD, Judge, BARRY, Judge, PER CURIAM. BARRY, Judge,

text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Vincent J. DERBES, Gary B. Brown, Herbert B. Christianson, Andrew M. Hegre and Lloyd D. O’Quinn. Lloyd D. O’QUINN v. WHITNEY NATIONAL BANK OF NEW ORLEANS.
    Nos. 12411, 12752.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearing Denied Sept. 2, 1983.
    Writ Denied Nov. 18, 1983.

      William J. Dutel, Laura J. Todaro, Dutel & Dutel, New Orleans, for Lloyd D. O’Quinn (co-defendant-appellant and plaintiff-appellee).
    James G. Derbes, Derbes & Derbes, New Orleans, for Dr. Vincent J. Derbes, M.D. (defendant-appellant).
    Bernard J. Capella, New Orleans, for Dr. Gary R. Brown, M.D. (defendant-appellant).
    Arthur S. Mann, III, Tucker & Sehone-kas, New Orleans, for Dr. Herbert B. Chris-tianson, M.D. (defendant-appellant).
    Jerry A. Brown, John D. Wogan, Monroe & Lemann, New Orleans, for Whitney Nat. Bank of New Orleans (plaintiff-appellee and defendant-appellant).
    Before SCHOTT, BARRY, AUGUSTINE, LOBRANO and WARD, JJ.
   SCHOTT, Judge.

This is a consolidated case which began when an in commendam partnership, Elk Place Medical Plaza, borrowed money to finance construction of a building budgeted at $6,011,064. Coldwell Mortgage Trust provided $5,000,000 interim financing and Whitney National Bank of New Orleans loaned the balance represented by a promissory note for $1,011,064, dated July 12,1973, payable on demand, with 8½% interest per annum and signed by the managing partner, Dr. George Farber. Farber, another general partner, Mrs. Alma Burks, and three limited partners, Drs. Derbes, Brown and Christianson indorsed the note as sureties. In 1975 Dr. Hegre and Lloyd D. O’Quinn purchased a limited partnership equity and also indorsed the note. In December, 1977, Mutual of New York provided $6,500,000 permanent funding which retired the $5,000,000 Coldwell loan and the $1,500,-000 balance was applied to various other partnership obligations owed to Whitney. None of the MONY funds were applied to the subject note.

The partnership paid the interest on the note through January 31, 1979, and four months later went bankrupt. Whitney filed separate lawsuits against Dr. Farber and Mrs. Burks, and then filed suit (said suit hereinafter referred to as Whitney) against the other five limited partners as indorsers of the note. Numerous motions and exceptions were filed and the five defendants pleaded a variety of defenses, including material alteration of the note, impairment of subrogation rights due to release of securities, failure of consideration, failure of cause, error, fraud and misrepresentation. The matter was heard before a commissioner who made a report and recommendation to the district judge on July 31, 1980. Following a hearing on exceptions to the commissioner’s report, on November 10, 1980, the trial judge rendered judgment in favor of Whitney for $1,011,-064, the amount of the note, plus interest at 8½% and attorney fees. All reconventional demands were dismissed as of nonsuit. The five defendants devolutively appealed raising numerous issues and urging defenses. Whitney answered the appeal seeking additional interest.

Subsequently, Whitney obtained a writ of fieri facias against defendant O’Quinn. O’Quinn in turn sued Whitney (said suit hereinafter referred to as O’Quinn) for an accounting of funds the bank received after trial and was granted a temporary restraining order halting Whitney’s collection efforts. The restraining order was vacated by this court; however, we denied Whitney’s motion to stay O’Quinn’s suit noting that a debtor has the right to seek injunc-tive relief “... if the judgment has been extinguished by payment made subsequent to the judgment.” Following the injunction trial, judgment was rendered in favor of O’Quinn holding that Whitney had received sufficient funds to fully satisfy the promissory note. Whitney filed a suspen-sive appeal and the case was consolidated in this court with the earlier Whitney case.

Initially, we shall treat the significant issues arising out of the Whitney suit. Whitney was specifically concerned with the validity of the note and the question of liability, if any, of the several indorsers thereon. In this regard, the indorsers had argued that the bank’s actions, i.e., failure to inform the parties of the interest rate changes, misrepresentation regarding the amount of collateral available, material alteration, improper imputation of payment, equitable estoppel, renewal, novation, etc. relieved the parties of any liability on the subject note. The facts were heard before a commissioner and a report and recommended judgment were prepared in accordance with LSA-R.S. 13:1171. Following a hearing on exceptions to the findings of the report of the commissioner, the district court judge concluded that there was no merit to the many objections to the commissioner’s report except for those concerning the portion of the judgment granting contribution. Accordingly, the district court judge entered his final judgment holding each of the several indorsers liable in solido for the face value of the note at the stated rate of 8½% interest.

The major issues to be decided by this court based upon the Whitney record are: (1) are indorsers who signed at a later date to be considered as accommodation indors-ers and thus not primarily liable on the note; (2) did a material alteration take place when the bank made marginal notations of interest rate changes; (3) did Whitney make misrepresentations which would support a plea of contractual error, fraud, or equitable estoppel; and (4) is R.S. 13:1171 which allows for referral of certain cases to a commissioner constitutional.

STATUS OF THE PARTIES

The defendants who signed the note at a later date contend that they are only secondarily liable as indorsers pursuant to R.S. 7:63.

The record reflects that Dr. Hegre and O’Quinn signed the subject note in the latter part of 1975, and that Drs. Christianson, Brown and Derbes signed either on or shortly after the making of the note. The principal argument of those who signed at a later date is that there was no consideration received for their signatures since the subject funds had been transferred at an earlier date. Specific reference is made to the language on the back of the note which states:

“In consideration of the making at the request of the undersigned of the loan evidenced by the within note, the undersigned has taken notice of the conditions and promises on the reverse hereof, and binds himself in solido by each and all of them, as there stated.”

In this regard, it is clear that the absence of consideration received by either an accommodation indorser, guarantor, or surety has no bearing on the underlying obligations of these parties. See Guaranty Bank & Trust Company v. Carter, 394 So.2d 701 (La.App. 3rd Cir.1981) and Cameron Brown South, Inc. v. East Glen Oaks, Inc. 341 So.2d 450 (La.App. 1st Cir.1976). By the terms of the subject note the defendant indorsers are obligated in solido with the maker of the note to Whitney Bank. Whether or not the indorsers are considered accommodation parties to the maker has no effect on their status as primary obligors to the bank since any indorser who signs a note containing such language is primarily liable to the payee. Bonart v. Rabito, 141 La. 970, 76 So. 166 (La.1917).

MATERIAL ALTERATION

The indorsers allege that the markings placed in the margins amount to material alterations under Negotiable Instruments Law, LSA-R.S. 7:125 and 7:124, and should relieve them of any liability.

Whitney counters that the cases of Deposit Guaranty National Bank v. Shipp, 205 So.2d 101 (La.App. 2nd Cir.1967), aff’d 252 La. 745, 214 So.2d 129 (La.1968) and Malinda v. St. Philip, 138 So.2d 671 (La.App. 4th Cir.1962) stand for the proposition that where an interest rate is changed in the body of the note, the holder may collect the full amount of the note plus interest.

In Malinda, the change of interest rate was made with the consent of the maker. In Shipp, the Supreme Court noted that the defendant’s failure to plead material alteration as an affirmative defense made any ruling on the issue unnecessary under LSA-C.C.P. Art. 1005. Thus, neither Shipp nor Malinda have specifically ruled upon the question of what liability an indorser on such an altered note should bear.

However, Malinda does provide the general principle that where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided as to all parties except any party who himself made, authorized or assented to the alteration and subsequent indorsers. Indeed, this principle has been upheld under the negotiable Instruments Law even though the alterations in question had been made good in good faith. Simmons v. Green, 18 La.App. 492, 138 So. 679 (La.App. 2nd Cir.1932).

Therefore, the question to be decided is whether or not these interest rate notations constitute a material alteration which would release the indorsers of their liability.

LSA-R.S. 7:124 and 7:125 are identical with the provisions of Section 124 of the Uniform Negotiable Instruments Act. A study of the decisions of other jurisdictions which have adopted the act reveals that an alteration of an interest rate in a note is a material alteration warranting discharge of all parties not consenting thereto. However, there have also been decisions which have held that marginal notations are not material where they have no bearing on the legal effect of the note. In this regard, the distinction between material and immaterial alterations is to be based upon whether the alteration affects or attempts to affect the terms of the contract or merely represents a memorandum or a collateral agreement which does not in any way change the force and effect of the instrument. We find this rationale applicable to the case now at bar.

The witnesses for the bank had testified that the changes in the interest rates on demand loans were made according to the prevailing market conditions and that a notice of rate change was sent to Elks Place about seven days prior to the effective date of such a change. The bank suggests that this system of rate change binds the indors-ers since Farber acted as their agent in his capacity as managing partner of the Elks Place Partnership. The indorsers argue that Farber lacked the agency authority to bind them in their individual capacities.

We find that although Farber had authority to bind the Elks Place Partnership, as far as the individual indorsers are concerned, the noted changes of interest rate are only marginal notations which do not change the legal effect*of the note since they merely represent a separate agreement of the maker (Elks Place) to pay a higher rate of interest in exchange for the bank’s not calling the note due.

FRAUD, ERROR, EQUITABLE ESTOPPEL

The alleged fraud in the Whitney suit arises out of the defendant’s pleadings which contend that an officer of the Whitney Bank made misrepresentations that the note would be paid off out of funds obtained from permanent financing. The commissioner’s report which was adopted by the trial judge stated that the testimony revealed that although the expectation of all parties was that this note was to be discharged when the project was completed and permanent financing obtained, such was never made part of the agreement between the parties. In this regard, the commissioner suggested that the ultimate financial demise of the partnership was a risk which should be borne by the parties who had signed the note since they were all well educated and well advised of the consequences of their actions. Upon review of the record, we find no manifest error in regard to the findings of the trial court pertaining to the pleas of fraud, error and equitable estoppel. Canter v. Koehring Co., 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

CONSTITUTIONALITY OF THE COMMISSIONER’S SYSTEM

The indorsers further argue that the referral of the subject case to a commissioner pursuant to R.S. 13:1171 violated their constitutional right to be heard by an elected judge as provided for by Art. 5 of the Constitution of 1974.

In Bordelon v. Louisiana Department of Corrections, 398 So.2d 1103 (La.1981) the court held that R.S. 13:713 establishing the commissioner procedure for the 19th Judicial District Court was not unconstitutional. The court concluded that “certain judicial power may be delegated without any abdication of the judge’s fundamental responsibility for deciding cases” and that “delegations of power to conduct evidentiary hearings and to prepare proposed findings of fact and recommendations for disposition based upon the evidence and arguments is not inconsistent with the constitution and laws which vest the judicial power in judges of enumerated courts, as long as the judges retain the responsibility for making the ultimate decisions in the case.” (At 1105)

R.S. 13:1171 succinctly sets forth the procedure to be followed when a case is referred to a commissioner, and that procedure has been discussed by this court on prior occasions. The commissioner’s authority is limited to gathering the facts and making a recommendation to the trial judge. The trial judge is vested with the ultimate authority to render final judgment. In this regard the commissioner’s role may be constitutionally viewed as a judicial assistant or special master to whom a case is referred by the judge for 13:1171 does not purport to vest judicial power in commissioners since they cannot render judgment. Franklin Printing Co., Inc. v. Collin, supra.

Additionally, it should be noted that R.S. 13:1171 provides a procedure whereby exceptions can be filed to the commission- . er’s report and recommendation. The statute requires that the trial judge set the exceptions for hearing, hear argument, and decide the exceptions on the record as made up before the commissioner. A review of the record presently before this court, reveals that following the filing of the commissioner’s report and the hearing of the exceptions thereto, the trial judge reviewed the record, read all the pleadings and mem-oranda of counsel, heard the objections to the commissioner’s report and recommendations, and rendered his judgment on the subject case. Upon these facts, we find no merit to the appellants’ contention that their constitutional rights had been violated.

Having disposed of the significant issues raised by the defendants in the Whitney case, we turn to the issues involved in the O'Quinn case.

Whitney asserts under local court rules the trial judge in O'Quinn should have granted its motion to transfer the second lawsuit to the court which heard the Whitney case. Considering the nature, allegations and objectives of the two lawsuits, we find that the Whitney case should have been treated as part of the previously pending suit. The injunctive relief requested grew out of the prior suit. The subject local court rule allows the district court judge to whom a case has been improperly allotted to transfer the case to the proper division. If the trial judge refuses to do so the party is entitled to seek a supervisory writ from this court directing the clerk of court to properly allot the case in accordance with the rule. However, since the complete record is before us for review no purpose would be served by remanding the case for retrial of the issues.

The bank received substantial monies after the Whitney trial ended on June 19, 1980. Whitney argues our March 5, 1981, order limited evidence in O’Quinn to sums received after November 10,1980, when the Whitney judgment was signed. Whitney’s interpretation would allow the bank to avoid accounting for money it received during the 143 day period after trial and before the judgment was signed. We find that the funds collected by the bank during this interval must be considered in order to determine if the note’s imputation clause applies and what balance (if any) is owed on the note.

APPLICABILITY OF IMPUTATION CLAUSE

The note’s imputation of payments clause states:

“All parties hereto hereby authorize and empower said Bank, at any time, to appropriate and apply to the payment and extinguishment hereof and/or of any of the obligations or liabilities, direct or contingent, of any of the parties hereto, whether now existing or hereafter arising, and whether then due or not due, up to the amount of $15,000,000.00, said bank being authorized to impute the payments as it sees fit, any and all moneys, stocks, bonds, or other property of any kind whatever now or hereafter in the hands of said Bank on deposit or otherwise to the credit of or belonging to any party hereto, including any moneys or other property in transit to or from said Bank for any purpose.”

Whitney contends this language gave it authority, without limitation, to apply any payments made on behalf of the partnership or its partners to any obligation of the partnership or any of its limited partners. Though this is a standard imputation clause, its interpretation and the question here on its application is res nova.

Whitney argues in brief: “(T)he $15,000,000.00 limitation is a cap on the pledge obligation of each maker, endorser and guarantor, which many bank attorneys feel is required by the Civil Code articles on pledge.” Whitney asserts the fifteen million dollar figure is not a limit on the holder’s (bank’s) right to impute, but rather on the amount of an individual’s collateral that the bank can hold at one time. We disagree. The note states the bank is authorized to apply “... as it sees fit, any and all moneys, stocks, bonds or other property of any kind whatever ... belonging to any party hereto” “... to the payment and extinguishment ... of any of the parties hereto ... up to the amount of $15,000,-000.00” (our emphasis). Since Whitney prepared the promissory note any ambiguity must be resolved against it. We interpret the fifteen million dollar provision as establishing a limit upon Whitney’s right to impute payments at its sole discretion. Once that limit is reached Whitney’s discretionary right to impute ends.

Whitney claims O’Quinn was precluded from raising the imputation issue in the O’Quinn suit because of collateral estoppel, res judicata and lis pendens. Collateral estoppel is not susceptible of application in a civil law jurisdiction. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). Res judicata is not applicable because a final judgment had not been rendered in the first suit. LSA C.C. Arts. 2285, 2286. However, lis pendens has already been held to be applicable to all issues previously litigated. In this regard we find that this aspect of imputation (the fifteen million dollar limit) was not raised, litigated or decided in the first suit and was properly raised in the O’Quinn suit.

COMPONENTS OF THE $15,000,000.00 LIMIT

During the O’Quinn trial Mike Kingsberry, C.P.A., an expert witness for O’Quinn, determined from subpoenaed bank records that Whitney received payments totaling $19,918,693.64 on Farber-related accounts since the note was executed on July 12, 1973. Whitney complains the sources of payments included by Kingsberry were inappropriate because the records were from seven separate loan accounts, i.e., other Farber borrowing entities, but the bank admits “... (n)othing in the record connects the loans except that Dr. George A. Farber was a maker, indorser or guarantor of each loan.” (our emphasis). Whitney objected only to the source of the payments and did not produce any evidence to rebut the amounts included by Kingsberry. In any event, we are not inclined to analyze the payments in detail because of the ultimate result we reach in the case. Although we conclude that an aggregate of fifteen million dollars was received by the bank prior to the end of trial in Whitney on June 19, 1980, and that Whitney’s discretion to freely impute payments had ceased; we find that Whitney was not obliged to impute payments made subsequent to June 19, 1980, to the obligation of defendants on the subject note.

IMPUTATIONS OF PAYMENTS

Once the fifteen million dollar limitation was exceeded Whitney no longer had the right to impute payments as it saw fit. Instead, imputation was thereafter controlled by the following codal articles:

“Art. 2163. DEBTOR’S RIGHT TO MAKE IMPUTATION. The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.”
“Art. 2165. IMPUTATION BY CREDITOR’S RECEIPT. When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor.”
“Art. 2166. LEGAL ORDERS OR IMPUTATION. When the receipt bears no imputation, the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, or those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.
If the debts be of a like nature, the imputation is made to the debt which has been longest due; if all things are equal, it is made proportionally.”

The pertinent amounts received after the fifteen million dollar limitation was reached are described as follows:

1. $704,386.67 — Received by Whitney on October 29, 1980 from the foreclosure sale of Elk Place Medical Plaza.
2. $4,246.23 — Received by Whitney on November 10, 1980 from Harris Mortgage Corporation for application to the debt of Elk Place Medical Plaza.
3. $445,059.09 — Received by Whitney from the sale of Farber stock on February 5 and 6, 1981, applied to two loans made by Farber.

The $704,386.67 received by Whitney on October 29,1980, was the balance of the sales price received by the sheriff on the foreclosure sale of Elk Place Medical Plaza. Whitney held a second mortgage on the building, and applied the funds to those Elk Place partnership loans secured by said mortgage. Common sense dictates that O’Quinn and Hegre cannot contest this imputation. The sheriff had to deliver the funds remaining after discharge of the first mortgage to the next ranking mortgage holder. We are unaware of any legal principle which prevents that second mortgage holder from applying those proceeds to the secured debt and requires it to apply them to some other debt for the sole benefit of the other debt’s surety.

Furthermore, the law supports Whitney’s position. Since the debtor made no direction as to application of payment and hence “accepted receipt” of the payment, Whitney’s imputation was proper. C.C. Art. 2165. “When a creditor imputes the payment and informs the debtor of the imputation by a statement of account, the debtor who accepts the statement or receipt without objection or is silent is estopped from questioning the imputation.” Marks v. Deutsch Construction Co., 258 So.2d 676 (La.App. 4th Cir.1972), 678, 679. See also, Romero & Sons Lumber Company v. Babineaux, 151 So.2d 714 (La.App. 3rd Cir.1963).

The |445,059.09 received by Whitney on February 5 and 6, 1981 from the sale of Farber stock was applied to the credit of various personal loans of Dr. Farber. This was done by the explicit direction of Dr. Farber, and the record is devoid of any evidence that the stock was pledged to secure the note indorsed by O’Quinn. On the contrary, C.C. Art. 2163 specifically provides that a debtor of several debts has the right to declare which debt he means to discharge.

The record is not clear as to the application of the funds received from the Harris Mortgage Corporation. However, the same rules of imputation are applicable. If the debtor, Elk Place Partnership or Far-ber, directed application of the proceeds to a particular debt, Whitney was obliged to do so. If Whitney imputed by receipt, without objection from the debtor, the guarantor has no standing to object.

A third party, including an indorser, cannot force the debtor to impute his payment in a particular fashion, nor can he abrogate the creditor’s right to impute by receipt when the debtor has failed to declare. See, Imputation of Payment; A Study of Obligations, 38 Tul.L.R. 31. See also Grand Lodge, etc. v. Murphy Const. Co., 152 La. 123, 92 So. 757 (1922); Thompson & Co. v. Sporl, 160 La. 352, 107 So. 135 (1926).

We have thus concluded that defendants are not entitled to any of the credits they claim on the note sued on in the Whitney case and the trial judge in the O'Quinn case erred in his conclusion that note was satisfied and extinguished.

Finally, we turn to Whitney’s answer to the appeal in which it seeks an increase in the interest of 8V2% allowed by the trial court in Whitney.

Whitney contends that it was allowed to charge a “floating rate” of interest on the subject note. The allowed 8½% interest was the amount set out in the original note. During the life of the loan Whitney fluctuated its interest rate to as high as 11¾% on April 1,1979. “Floating” interest rates are not uncommon in financial circles. They are a very integral part of the lending industry. However, in order to bind obli-gors to such practices they must be advised of same and have consented to it. In the instant case, the note merely stated 8½% interest. No mention was made of a floating rate in the body of the note, nor was. there any other agreement indicating consent on behalf of the parties to a fluctuating rate. While Farber may have consented to changes in the interest rate there is no evidence that any of the indorsers consented or even had knowledge of the purported changes when they occurred. Whitney had no authority unilaterally to change the interest rate of its loan without the consent of the parties thereto.

Accordingly, the judgment in favor of the Whitney National Bank in Suit No. 79-8183 of the Civil District Court against Dr. Vincent J. Derbes, Dr. Gary R. Brown, Dr. Herbert B. Christianson, Dr. Andrew M. Hegre and Lloyd D. O’Quinn is affirmed.

The judgment in favor of Lloyd D. O’Quinn in suit No. 81-1399 of the Civil District Court is reversed and set aside and there is judgment in favor of Whitney National Bank of New Orleans, dismissing Lloyd O’Quinn’s suit at his cost, including the cost of the appeal.

Our Docket No. 12411 AFFIRMED.

Our Docket No. 12752 REVERSED AND RENDERED.

WARD, J., concurs.

BARRY, J., dissents.

WARD, Judge,

concurring.

Although I agree with the majority’s treatment of most issues and with its conclusion, I disagree with the treatment of the issue of imputation of payments. That part of the note which purports to grant Whitney the right to impute payments is so permeated with legalese that it is ambiguous at best and non sensical at worst, and the majority, in my opinion, misinterprets the imputation clauses of the note.

After eliminating the legalese and after inserting the obvious, I submit the following extract is a more accurate interpretation of the right of Whitney to impute payments.

All parties ... agree that the payment hereof may be extended from time to time, one or more times, without notice
The property described on the reverse hereof, and any property that may be substituted therefor ... are hereby pledged ... to [Whitney] to secure the payment of this note, and of any note given in extension ... as well as for the payment of any other obligation ... of any of the parties hereto to [Whitney] ... up to the amount of $15,000,000.00 .... All parties ... agree that the property ... pledged may be exchanged [for other pledged property] or surrendered ... without notice to or assent from any party ... [and] ... full irrevocable power and authority are hereby granted and given to [Whitney] ... upon this note not being paid at maturity, to sell, ... the whole of the property of every kind pledged .... [and Whitney] may apply the residue of the proceeds of sale or sales, pro tanto, to the payment of any or all of the obligations or liabilities of the parties hereto or [to] any of them, whether then-due or not due, up to the amount of $15,000,000.00 ...
[Additionally] All parties ... authorize ... [Whitney] to appropriate [any of the property described below] and [to] apply to the payment ... [of this note] or of any of the obligations ... of any of the parties hereto, ... [the proceeds from the sale of that property] up to the amount of $15,000,000.00, [and Whitney is] authorized to impute the payments as it sees fit, [of] any and all moneys, stocks, bonds, or other property of any kind whatever now or hereafter in the hands of said Bank on deposit or otherwise to the credit of or belonging to any party hereto .... All parties ... authorize [Whitney] ... to collect, ... and apply to the payment and extinguishment [of the note] the interest, dividends, or other income accruing and payable on any of the property pledged to secure the payment hereof ....

The note speaks of property, not payments on the note or payments on other indebtedness of the parties, and it should not be interpreted to include payments. The note as I interpret it does not give Whitney the unfettered right to impute payments as it sees fit except from proceeds of the sales of property pledged to secure the note or from money, stocks, and bonds belonging to the parties and then in the hands of Whitney. Hence, imputation of all payments now in dispute should follow the provision of Articles 2163, 2165, and 2166 of the Civil Code.

BARRY, Judge,

dissenting:

The note plainly states the bank is authorized to apply “... as it sees fit, any and all moneys, stocks, bonds or other property of any kind whatever .... belonging to any party hereto” ... “to the payment and extinguishment ... of any of the obligations or liabilities, direct or contingent, of any of the parties hereto ... up to the amount of $15,000,000.00” (my emphasis). The majority correctly interprets this as clearly establishing a $15 million limit upon Whitney’s right to impute, but falls into error when applying the provision to several payments the bank received following the Whitney trial.

COMPONENTS OF THE $15,000,000 (see appendix)

Whitney’s records (produced under subpoena) show the bank received payments totalling $19,918,693.64 on Farber-related accounts since the note was executed on July 12, 1973. Each collected amount represents an obligation or liability “direct or contingent” of a “party” (Farber) to the subject note. Based on the bank’s records, payments totalling $17,771,215.61 were imputed by Whitney to Farber-connected accounts prior to the close of trial in Whitney; therefore, the bank’s discretion to impute payments had ceased and the partnership note should have been reduced accordingly. However, the majority wrongfully concludes that Whitney “was not obliged to impute payments made subsequent to June 19, 1980,” then goes on to explain why the various amounts should not be credited to the note. I’m satisfied the payments received subsequent to June 19, 1980 should be credited against the note because of the source of these payments.

IMPUTATION OF PAYMENTS (see appendix)

After the $15 million limit was reached, codal articles on imputation of payments (LSA-C.C. Arts. 2168 et seq.) are applicable to funds attributable to the partnership note. Under these provisions payments go to the debt “... which the debtor had at the time the most interest in discharging, of those that are equally due .... If the debts be of a like nature, the imputation is made to the debt which has been longest due ...” LSA-C.C. Art. 2166. Any interest due must be paid either first or concurrently with principal. LSA-C.C. Art. 2164. Certainly the debtor (Farber) had “the most interest in discharging” this debt (secured by a surety) and the record shows it was the “longest due.” Hence, once $15 million was exceeded, this note should be the first debt paid out of money collected by the bank on behalf of the partnership account.

The bank argues this issue was litigated in Whitney and was precluded by an order from this Court. The $15 million cap was not raised in Whitney. These payments were received after the first trial ended and the $15 million had been reached. Therefore, this matter could not have been litigated in Whitney and payments received by the bank were not barred from consideration by our March 5, 1981 order.

Whitney also complains that the rules of imputation can be evoked only by the “debtor of several debts” (Farber) and not the surety. That reasoning is illogical. The debtor and creditor have more freedom to act in their dealings when only their interests are affected rather than when others may be prejudiced by their actions.

After the Whitney trial, the note was placed in a separate account by the bank. There were foreclosures on properties and stocks and other collateral were sold, most of which had at one time been pledged by Farber to secure this particular note. Proceeds from the foreclosures and sales of collateral were intentionally credited by the bank to other debts of Farber and Elk Place at Whitney’s discretion and Farber’s direction. None of the endorsers had notice of the proceedings and did not know how the money was applied by the bank. Whitney and Farber were aware this diversion of funds was to the detriment of the note’s endorsers because Elk Place and Farber were in bankruptcy and would never be able to reimburse the sureties (as provided by law) if they were called upon to pay this note.

Under these circumstances, I believe it is unconscionable to allow Whitney and Far-ber to agree to divert payments to the prejudice of the five endorsers. The sureties had the right to demand imputation as provided by law and their intent should have been manifest to Whitney and Farber after the Whitney trial. See Duffy v. Roman, 209 So.2d 502 (La.App. 4th Cir.1968), Grand Lodge, Benevolent Knights of America v. Murphy Construction Co., 152 La. 123, 92 So. 757 (1922), R.P. Fransworth & Co. v. Electrical Supply Co., 112 F.2d 150 (5th Cir.), cert. denied, 311 U.S. 700, 61 S.Ct. 139, 85 L.Ed. 454 (1940).

MANDATORY CREDITS AFTER IMPUTATION

The following sums received by Whitney subsequent to the end of the Whitney trial on June 19,1980, should have been credited:

1. $704,386.67 — Received by Whitney on October 29, 1980 from foreclosure sale of Elk Place Medical Plaza. (Exhibit P-20)
2. $4,246.23 — Received by Whitney on November 10, 1980 from Harris Mortgage Corporation for application to the debt of Elk Place Medical Plaza. (Exhibit P-20)
3. $445,059.09 — Received by Whitney from sale of Farber stock on February 5 and 6, 1981. This amount was applied to two loans made by Farber. (Exhibit P-19)

Farber admitted at trial that the stocks which were “sold” had been pledged to secure the Elk Place debt. (Testimony of March 6, 1981, p. 27). Whitney’s only explanation was this amount represented all pledged stock held by the bank registered in the names of Dr. and Mrs. Farber, except Coldwell Mortgage and Fairgrounds stock. The court in O’Quinn found that these stocks (i.e. those “sold”) were pledged to secure the subject note. In light of Far-ber’s testimony and the July 11, 1973 letter (Exhibit P-25) from Farber to Treuting regarding the pledge of stock, I do not find that conclusion erroneous.

Whitney also objects to the inclusion of stock proceeds to extinguish the note based upon Farber’s testimony that he and Whitney agreed this amount would apply to his personal loans (see footnote 9, supra.) As stated above, subsequent to the first trial and the $15 million limit being met, under the circumstances of this case, the debtor and creditor were not at liberty to direct payments to the prejudice of the endorsers. Farber owed several debts to Whitney and the endorsers herein had the right to imputation in order to protect their positions. These stocks were owned by Farber and pledged to secure this note; unquestionably, the proceeds should have been imputed to this note.

The following assets, when liquidated, should also be imputed:

1. Coldwell Mortgage — 36,150 Common Shares
—3,200 Preferred Shares
Fairgrounds — 4,196 Common Shares.

Mr. Hart, Whitney’s vice president, testified these stocks were held by the bank, belonged to Farber, and were in the process of being sold. Farber testified: “There’s been agreed a private sale of these stocks which is waiting on a clarification from Judge Bernard of the bankruptcy court.” O’Quinn argues these stocks were pledged to secure the note, citing the July 11, 1973 letter. The stocks were not specifically listed in that letter, but Farber stated he estimated 40% of these stocks were pledged to secure Elk Place (testimony March 6, 1981, p. 29). The evidence is sufficient to require imputation.

2. Funds held by bankruptcy court.

Richard Leefe, attorney representing Elk Place, Harvey Oil Center, and Farber in three bankruptcy proceedings, testified that “approximately two hundred thousand dollars” was available in the Elk Place bankruptcy and Whitney was the largest unsecured creditor. If Whitney receives money from the bankruptcy court on the Elk Place account it should be imputed to the note.

3. $10,000 — Certificate of Deposit due March 26,1981.

At the time of trial (March 5, 1981) the certificate had not matured, but testimony does not confirm that the C.D. was in the name of Elk Place. Whitney’s Mr. Hart was the only person to testify regarding this item when referring to securities pledged by Farber to Whitney. Whitney’s brief states the C.D. was actually issued in the name of and pledged by Farber. O’Quinn argues it is irrelevant whether issued in Farber’s or Elk Place’s name as it was clearly available as a credit. If issued in either name, when the money was (or is) received it should be credited to this note.

ITEMS NOT SUBJECT TO IMPUTATION

The O’Quinn court erred by including the following amounts for credit to the Elk Place account:

1. $109,000.00 — Sale of West Bank Petroleum Club note purchased by Whitney at public sale.

Mr. Hart was the only person to testify regarding this transaction and stated the note was from a tenant of the Harvey Oil Center and pledged by Dr. Farber and Mr. Leefe as security to any of their obligations. This was not refuted by O’Quinn. The amount was credited by Whitney to the Harvey Oil Center account on February 4, 1981. O’Quinn argues it should be a credit because the note was part of the properties cross-collateralized on the cross-pledge of September 24, 1978. However, Mr. Leefe had no association with Elk Place and the evidence is insufficient to allow a credit.

2. $32,240.00 — Payments in excess of the note’s 8½% interest.

This issue was litigated in the Whitney suit. Elk Place, the maker, acquiesced in higher interest rates and that money cannot be recouped by the endorsers.

SUMMARY

The following amounts should be imputed for credit on the partnership note as of the specified dates:

$ 704,386.67 - as of October 28,1980
4,246.23 - as of November 10,1980
441,359.95 - as of February 5,1981
3.699.14 - as of February 6,1981
81.153.691.99

In addition, the unliquidated assets (Cold-well and Fairgrounds stock, bankruptcy funds, and C.D.) should be credited whenever received by Whitney.

The Whitney Bank, assisted by Farber, was in the driver’s seat throughout this scenario. The endorsers were at the mercy of the bank and its imputation clause (agreeably and legally) up to the bank’s self-imposed limitations in the clause. Thereafter, the very purpose of the clause came into play, namely, to protect these endorsers.

O’Quinn should be remanded to complete the accounting of funds received by Whitney in order to determine what balance, if any, is owed to Whitney Bank after considering all permissible credits.

I should also point out that the majority has failed to treat O'Quinn’s argument relative to the Difficiency Judgment Act. Serious questions were raised and are unanswered which could effectively alter the majority’s disposition of this obligation.

APPENDIX

WHITNEY-FARBER LOAN ACCOUNTS PAID TO WHITNEY AS PER KINGSBERRY LESS PAYMENTS RECEIVED AFTER WHITNEY TRIAL (AS PER EXHIBITS) amounts to calculate IMPUTATION

Elk Place Medical Plaza Liability Ledger Card $ 7,179,554.54 $ 60,000.00 18,406.96 $ 7,101,147.58

George A. Farber, M.D. James W. Burks, M.D. 86,500.00 -0-86,500.00

Farlee Company 4,337,337.24 442,522.33 268,098.06 12,114.67 3,614,602.18

George A. Farber, M.D. Guy L. Leefe, Jr. 3,730,813.95 109,000.00 3,621,813.95

Burks Dermatology & Allergy Clinic 120,332.30 -0-120,332.30

Mrs. Alma L. Burks George A. Farber, M.D. 107,000.00 -0-107,000.00

Elk Place Medical Plaza 977,694.64 173,848.70 390,708.79 977,694.64 173,848.70 390,708.79

Farlee Company 504,795.50 504,795.50

George A. Farber, M.D. Guy L. Leefe, Jr. 634,301.19 634,301.19

George A. Farber, M.D. 114,826.62 103,910.44 48.65 10,867.53 -0-

Elk Place Medical Plaza (Foreclosure) 630,225.94 555,541.04 3,821.60 70,438.67 424.63 -0-

George A. Farber, M.D. and Guy L. Leefe, Jr. 438,470.78 -0-438,470.78

Farlee Co. Foreclosures 492,283.45 134,291.84 208,968.52 19.324.17 8,197.09 14,921.31 42.529.17 12.527.17 17,331.52 31,935.80 2,256.86 370,781.62 121,501.83 -0-

$19,918,693.64 $2,147,478.03 $17,771,215.61

ON REHEARING

PER CURIAM.

In their application for rehearing the indorsers complain that we did not address their argument that they were discharged because of the Louisiana Deficiency Judgment Act, LSA C.C.P. Arts. 2771 and 2772, R.S. 13:4106, and they ask for a rehearing on this basis.

The Deficiency Judgment Act has no application to the case because the indorsers had no interest in the property foreclosed upon and the property was sold with appraisement after due notice to the owners of the property. Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir.1976), Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir.1975), Gumina v. Dupas, 178 So.2d 291 (La.App. 4th Cir.1965), writs refused 248 La. 442, 179 So.2d 430 (1965).

REHEARING DENIED.

BARRY, Judge,

would grant a rehearing.

I disagree with the majority’s treatment of the imputation clause for the detailed reasons in my dissent.

O’Quinn raises a number of substantial issues, some of which are treated summarily and one of which was ignored:

“I should also point out that the majority has failed to treat O’Quinn’s argument relative to the Difficiency Judgment Act. Serious questions were raised and are unanswered which could effectively alter the majority’s disposition of this obligation.” (See Dissent, pp. 1199-1200.)

      . Specifically, this court’s order of March 5, 1981, was premised on C.C.P. Art. 2298(2) which entitles the judgment debtor to seek in-junctive relief if the judgment has been extinguished by payment made subsequent to the judgment. The order specifically stated:
      “The intent of our order was clear. The debtor is not entitled to Art. 2298 relief by further temporary restraining orders, but his rights under Art. 2298 to seek an injunction are preserved. We repeat, however, that lis pendens (our earlier ‘res judicata’ was a misnomer) precludes relitigating the defenses litigated in the earlier suit now pending on appeal.”

      . In brief and oral arguments the parties have referred to provisions of the Negotiable Instruments Law found in Title 7 of the Revised Statutes. This was repealed by Act 92 of 1974 and replaced by the Commercial Law found in Title 10. Since the new laws became effective on January 1, 1975, they were in effect when Hegre and O’Quinn became indorsers. The re-suit we reach is the same under either law, but the position of Hegre and O’Quinn is weakened considerably if the new law is applied.
      R.S. 7:63 provides: Persons deemed indorsers: A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. Replacement R.S. 10:3-402 provides: Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.

      . Such is true even if the principal maker is discharged in bankruptcy proceedings. Meadow Brook National Bank v. Massengill, et al, 427 F.2d 1055 (5th Cir.1970).

      . LSA-R.S. 7:124 reads: Alterations, effect of.
      Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized, or assented to the alteration and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.
      LSA-R.S. 7:125 reads: Materiality of alteration, any alteration which changes:
      (1) The date;
      (2) The sum payable, either for principal or interest;
      (3) The time or place of payment;
      (4) The number or the relations of the parties;
      (5) The medium or currency in which payment is to be made; or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is material alteration.
      However, replacement R.S. 10:3-407 provides: Alteration
      (1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in
      (a) the number or relations of the parties; or
      (b) an incomplete instrument, by completing it otherwise than as authorized; or
      (c) the writing as signed, by adding to it or by removing any part of it.
      (2) As against any person other than a subsequent holder in due course
      (a) alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;
      (b) no other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given.
      (3) A subsequent holder in due course may in all cases enforce the instrument according to its original tenor, and when an incomplete instrument has been completed, he may enforce it as completed.

      . See decisions pertaining to interpretation of 5 Uniform Laws annotated § 124 and § 125.

      . See: 3A C.J.S. Alteration of Instrument § 34(b), 4 Am.Jur.2d, Alteration of Instruments § 55, and A.L. Harrington Co. v. Barron, 15 La.App. 187, 131 So. 503 (La.App. 2nd Cir.1930) for discussion of marginal memorandum or notations on notes.

      .Under present R.S. 10:3-407 a change in interest is not specifically mentioned as a material alteration as was so in R.S. 7:125. Furthermore, R.S. 10:3-407(2)(a) provides that an alteration must be both fraudulent and material to discharge a party. '

      . Boe v. Lake Forest, Inc., 384 So.2d 850 (La.App. 4th Cir.1980); Franklin Printing Co., Inc. v. Collin, 376 So.2d 1323 (La.App. 4th Cir.1979) and Lane v. Lane, 375 So.2d 660 (La.App. 4th Cir.1978).

      . Rule 8, Section 9, of the Civil District Court for the Parish of Orleans provides:
      “Suits or proceedings that are filed subsequent to suits or proceedings already filed but which grow out of those previously filed suits or proceedings shall not be docketed as separate suits but shall be treated as parts of the previously pending suits and shall follow the prior allotment or assignment to the respective divisions of the Court. However, all motions for a new trial and all actions for nullity shall be heard by the judge who signed the original judgment. Whenever, by error or by oversight, this rule shall be violated, the judge to whom the matter shall have been allotted shall have the power to order same transferred to the proper division, there to be consolidated with the previously pending suit.”

      . See footnote 1.

      . Dr. Farber apparently had an extraordinary entree or working relationship with Whitney Bank personnel, as shown by the voluminous and inordinate loans in this record.

      . O’Quinn’s expert, Mike Kingsberry, C.P.A., testified that $19,918,693.64 was received on Farber-related accounts prior to the close of the Whitney trial. I have amended this figure to exclude payments that were in fact received after June 19, 1980, the close of trial in Whitney.

      . Calatex Oil & Gas Co. v. Smith, 175 La. 678, 144 So. 243 (1932). Although the parties were bound in solido on the note, the endorsers maintained their status as sureties vis á vis the maker.

      . The issue was raised for the first time in the Whitney appeal.

      . Case # 12367 dated March 5, 1981

      . LSA-C.C. Art. 2163

      . See Exhibit P-20

      . See the cross-collateral pledge agreement dated September 25, 1978, Farber’s July 11, 1973 letter to Mr. Robert Treuting, vice president of Whitney, and Farber’s testimony on March 6, 1981.

      . The first loan, for $428,000, was made on November 15, 1978 and due March 14, 1979. The second was a demand note, executed February 9, 1979 in the amount of $61,500. On February 5 and 6, 1981, payments in the amount of $114,826.62 toward interest and $330,232.47 toward principal were made on these two notes, leaving a balance of $159,-267.53.

      . There is no identifying information in the record regarding this block of stocks. Two groups of stock were referred to in Farber’s testimony: one group of stocks that had been “sold,” and another group not yet sold consisting of Fairgrounds and Coldwell Mortgage stock.

      . When questioned why he asked Whitney to use this money to pay his personal debts, he stated:
      “Why not? I owed all of these debts and that’s what I originally intended it for and I would rather have my own loan paid off than pay for people that may or may not still be friendly or may or may not have some problems, too. It would be stupid for me to say: Pay off somebody else’s first.”

      . Whitney again objects stating this issue was litigated in the first suit. The first suit did not determine the issue of collateral behind the note. Also, these sums were received by Whitney on February 5 and 6, 1981, long after the first trial ended.


author: GARRISON, Judge.

text:
    Mitzie MINKOS v. NEW ORLEANS PUBLIC SERVICE, INC. & Jane Doe.
    No. 12835.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearing Denied Sept. 22, 1983.
    J. Van Robichaux, Jr. and Glenn E. Diaz, Chalmette, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendants-appellants.
    Before REDMANN, GARRISON and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff’s widow damages in the amount of $10,748.40, for a fracture of the right arm resulting in 10 to 15% permanent disability, sustained by plaintiff on December 31, 1975, when he slipped on human vomit and fell while attempting to exit a bus operated by defendant, New Orleans Public Service, Inc., hereinafter “N.O.P.S.I.”. From that judgment, which we affirm defendant appeals.

On the date of the accident, Mr. Minkos boarded the bus at St. Claude Avenue. Two or three young boys or girls and Mr. Minkos were the only passengers on the bus. The bus driver made an unauthorized stop at a pay phone and made a lengthy, personal telephone call. Plaintiff was “tired of waiting” and attempted to leave the bus from the rear exit door, but the rear door was locked. Mr. Minkos then attempted to exit the bus from the front door, but fell on the offending substance on the bus floor.

On appeal, N.O.P.S.I. raises two specifications of error:

1. The trial judge erred in assessing the credibility of the witnesses testimony.
2. The trial judge erred in not finding the decedent contributorily negligent.

The instant case was tried by deposition but for the testimony of one witness, Mrs. Rose Perez. Mrs. Perez and her sister-in-law, Cheryl Perez, were leaving a bakery near the bus when they heard Mr. Minkos’ cries for help and observed him on the ground near the front steps. They also observed the bus driver, who was still talking on the telephone. Mrs. Perez observed vomit on the floor of the bus near the driver’s seat and on the two front steps. The trial judge concluded that the bus driver, Shirley Hamilton was not a reliable witness and found Rose Perez credible.

Appellant argues that Mr. Minkos was contributorily negligent in failing to hold onto the handrail when leaving the bus. Mr. Minkos stated:

“I headed for the rails, I headed for the rails of the bus behind — opposite the driver facing the exit. I headed for the rail, the vertical rails, but I didn’t make it. I fell backwards.”

The bus driver testified that the noxious substance was only on the front two steps, whereas Mrs. Perez testified that it was also behind the bus driver’s seat. In light of the trial judge’s finding that Mrs. Perez is the more credible witness, it is more probable that the substance was indeed behind the bus driver’s seat. Accordingly, Mr. Minkos would not be barred by contributory negligence for failure to hold onto the handrail where he fell prior to reaching the location of the handrail. In light of the evidence presented, we cannot conclude that the trial judge was manifestly erroneous in his factual determinations. Canter v. Koehring Co., 283 So.2d 716 (La.1973), Arceneaux v. Domingue, 365 So.2d 1330 (La., 1979). N.O.P.S.I. has not appealed the question of damages.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . Mr. Minkos died shortly before trial; his widow was substituted. Mr. Minkos’ deposition was entered into the record,

      . Minkos Deposition, Page 29.


author: BYRNES, Judge.

text:
    Bente Tveiten Stagg, wife of Eric Timothy STAGG v. Eric Timothy STAGG.
    No. CA 0537.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearing Denied Sept. 22, 1983.

      Favret, Favret, Demarest & Russo, J. Paul Demarest, New Orleans, for plaintiff-appellant.
    Saterlee, Mestayer & Freemen, A.D. Freeman, New Orleans, for defendant-ap-pellee.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from a judgment of the Civil District Court, Parish of Orleans, maintaining defendant’s Exception of Improper Venue and overruling his Exceptions of Lis Pendens, Lack of Subject Matter Jurisdiction, and Unauthorized Use of Summary Proceedings.

FACTS

On May 1, 1979 Bente Tveiten Stagg, plaintiff-appellant and Eric Timothy Stagg, defendant-appellee were judicially separated in the Civil District Court, Parish of Orleans. Custody of their minor child, Heidi Stagg, was awarded to plaintiff. Defendant was condemned to pay child support in the amount of $350.00 per month. The Judgment of Separation made no provisions for alimony pendente lite; however, it did order defendant to continue providing health insurance for the child and mother.

Following the Judgment of Separation, Mr. Stagg moved to Harris County, Texas. After residing there for six months he filed for divorce on grounds of living separate and apart. Mrs. Stagg neither answered the petition nor submitted to the jurisdiction of the Harris County Court. Defendant obtained a judgment of divorce by default on April 14, 1981. This decree granted custody of the minor child to Mrs. Stagg, divided the community property, condemned Mr. Stagg to pay $350.00 per month child support, and was silent as to permanent alimony.

On March 10, 1982 appellant filed a Motion to Increase Child Support and a Request for Alimony in the Parish of Orleans in the same proceeding in which the original Judgment for Separation had been rendered. Appellee appeared solely for the purpose of filing exceptions of Improper Venue, Lis Pendens, Lack of Subject Matter Jurisdiction, and Unauthorized Use of Summary Proceedings. The trial judge referred the exceptions to the merits. However, decision on the merits was never reached as the trial court maintained the Exception of Improper Venue. From that judgment plaintiff perfected this appeal.

ISSUES

Appellant specifies three issues on appeal: 1.) That the trial court erred in sustaining defendant’s Exception of Improper Venue; 2.) That she is entitled to permanent alimony; and, 3.) That she is entitled to an increase in child support for her minor daughter.

VENUE

Appellant argues that under the concept of continuing jurisdiction the Civil District Court for the Parish of Orleans was the proper venue in which to bring her Motion for Increase in Child Support and the Request for Permanent Alimony. We find this argument to be correct regarding the increase in child support but invalid as to the request for alimony.

VENUE FOR ALIMONY

A valid ex parte foreign divorce, obtained by default, has the effect of dissolving the marriage. Lewis v. Lewis, 404 So.2d 1230 (La.1981). Although such a divorce can establish marital status, it cannot effect child support or alimony because there is no personal jurisdiction over the absent spouse. Lewis, supra. Further, it is well settled that where the issue of permanent alimony is not raised prior to a final decree of divorce any subsequent claim for alimony must be made through an independent action and not as an incident of the original separation or divorce proceeding. George v. George, 347 So.2d 927 (La.App. 3rd Cir.1977); Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir.1967).

In the present case there is no question that Mr. Stagg obtained a valid divorce decree in Texas. However, under the rule enunciated in Lewis, supra, the Texas decree was only effective to dissolve the marriage and close the separation proceedings. Once the foreign judgment was brought to the attention of the Orleans Parish Court, the pending separation proceedings ended. Thus any subsequent claim for alimony by Mrs. Stagg would require a separate action. Under these circumstances the general venue provisions of Code of Civil Procedure Article 42(5) would control. Accordingly, the trial judge was correct in finding that Orleans Parish was an improper venue for this action to obtain permanent alimony.

VENUE FOR CHILD SUPPORT

Louisiana jurisprudence and codal provisions are clear in their mandate that the obligation of child support does not end upon dissolution of the marriage. Dubroc v. Dubroc, 388 So.2d 377 (La.1980) La.Civ. Code Arts. 158, 160 and 227. Because an ex parte divorce by default is ineffective as to child support, the amount provided for in the original separation decree would remain in full force and effect until one of the parties moves to modify it or until the child reaches eighteen. Where there is a previously existing award of child support, jurisdiction and venue for modification of that award is generally retained by the court which made the original award. Trahant v. Ingram, 393 So.2d 901 (La.App. 4th Cir. 1981); Holden v. Holden, 374 So.2d 749 (La.App. 3rd Cir.1979).

In the case at bar, the Texas decree made provisions for child support. However, Lewis, supra, provides that these provisions are ineffective in Louisiana. Therefore, the child support order contained in the original separation decree should remain in effect. Mrs. Stagg now seeks a modification of the original award. Accordingly, venue and jurisdiction are retained by the court which originally set the amount of child support; i.e. the Orleans Civil District Court. The trial judge was incorrect in finding venue improper regarding modification of the original child support award.

AMOUNT OF CHILD SUPPORT

For reasons of judicial economy and convenience to the parties, the trial judge referred judgment on defendant’s exceptions to the merits. Because the entire record is before us, we shall review it and render judgment on appellant’s claim for increased child support.

It is well settled that in order to obtain an increase in child support the claimant must show a substantial change in circumstances. Ducote v. Ducote, 339 So.2d 835 (La.1976). The amount of child support is determined by evaluating the wants and needs of the child in relation to the means of the parent condemned to pay support. La.Civil Code Art. 227 and 231. When arriving at an appropriate figure for child support the court “must consider the totality of all pertinent circumstances.” Nelms v. Nelms, 413 So.2d 1341, 1342 (La.App. 1st Cir.1982) and the authorities cited therein.

The jurisprudence is clear on the issue of the guideline to be used in determining the proper standard of living for the child. In Ducote, supra, the court stated:

If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. 339 So.2d at 838.

Therefore, if the non-custodial parent experiences a significant increase in income, the child may be entitled to share in that increase because he or she would benefit from it if they lived with the non-custodial parent.

In the instant case, the record reflects that Mrs. Stagg’s expenses for her minor daughter have increased since the original separation in 1979. Heidi is now seven years old and the cost of providing food, clothing and education for a seven year old are significantly greater than for a four or five year old. Mrs. Stagg works full time and must pay for child care after school. Finally, the testimony establishes that the child apparently suffers from a chronic respiratory illness. Although Mr. Stagg carries Heidi on his health insurance policy, which is paid for by his employer, Mrs. Stagg remains responsible for 20 per cent of all medical costs.

Mr. Stagg’s yearly income has increased by approximately $50,000.00 since the separation in 1979. We recognize that his position abroad requires him to spend more money on the essentials as well as on certain items which he would not require in the U.S. However, many of these expenditures are reimbursed by his employer. Further, three of appellee’s larger expenditures are for luxuries such as elective plastic surgery for his present wife, elective dental work, and certain investment property in Colorado. The record clearly establishes that although Mr. Stagg has voluntarily increased his child support payments by $50.00 per month, this amount does not meet the child’s monthly expenses much less maintain her at the level which she would enjoy if she were living with him. We therefore conclude that an increase in child support is justified in this case.

In determining the amount of child support to be awarded, a portion of general household expenses such as, mortgage payments, food, utilities, etc. may be attributed to the child’s needs as well as those expenses which are exclusively for her. Nelms, supra. The evidence presented at trial indicates that expenses attributable to the child either in part or in whole are at least $600.00 to $650.00 per month. Mrs. Stagg takes home roughly $630.00 per month from her job and receives $400.00 per month child support. Her total monthly expenditures are approximately $1530.00. Clearly $400.00 per month will not maintain the child at a level commensurate with one whose net salary is nearly five times that of Mrs. Stagg.

In Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981), the court held that where the non custodial parent had gross earnings of approximately $25,000.00 per year, an award of $350.00 per month for child support was reasonable. On the opposite end of the spectrum where the non custodial parent averaged $4,000.00 per month net earnings, an award of $850.00 per month child support was upheld. Bishop v. Bishop, 394 So.2d 799 (La.App. 4th Cir.1981).

In the present action, the record establishes that Mr. Stagg has a net income of approximately $4,500.00 per month. By contrast, appellant brings home only $630.00 per month. Although appellee makes more than the non custodial parent in Bishop, supra we note that the cost of living in Nigeria is higher than that in the United States. Therefore, we feel that the actual amount of income available to him each month is realistically somewhat less than $4,000 and find an increase in child support from $350.00 to $600.00 per month is appropriate.

CONCLUSION

The Civil District Court for the Parish of Orleans is the proper venue for the Motion to Increase Child Support. However, the Parish of Orleans is not the proper venue for the action to obtain permanent alimony. The amount of child support is increased to $600.00 per month.

AFFIRMED IN PART, REVERSED IN PART, RENDERED.

      . The propriety and/or amount of permanent alimony is not an issue properly before this court due to our holding concerning the proper venue for an action to award permanent alimony.


text:
    SUCCESSION OF Joseph D. TUCKER v. Helen Tucker POCHE.
    No. CA 0590.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearing Denied Sept. 22, 1983.
    Writ Granted Nov. 18, 1983.

      John D. Lambert, Jr., New Orleans, for plaintiff-appellee.
    Maurice Gomila, Robin Friedman, New Orleans, for defendant-appellee.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from a judgment of the Civil District Court, Parish of Orleans overruling defendant’s Exception of No Right or Cause of Action and granting plaintiff’s Motion for Summary Judgment.

FACTS

On December 30, 1966 Helen Tucker Poche [Helen] and her husband James Poche [James] conveyed, through duly recorded Act of Sale, a certain piece of property located at 2014 N. Galvez in New Orleans, to Helen’s brother Joseph Tucker [Joseph]. On the same date Joseph executed a counter letter providing that the property was being “sold” to him as a mere convenience and that title was actually vested in Helen alone as part of her separate estate. This counter letter was not recorded until several years later.

On January 3, 1975 Joseph sold the subject property to Homeseekers Savings and Loan Association [Homeseekers] which in turn resold the property to Joseph and Helen jointly. Joseph died on July 10, 1981. His succession was opened on July 27, and the original counter letter recorded on November 19, 1981.

In May, 1982, Joseph’s widow, appellee herein, instituted this action as executrix of his estate to have the counter letter declared null and void. Appellant, Helen Poche, filed an Exception of No Right or Cause of Action and reconvened, seeking a declaratory judgment recognizing her as the full and true owner of the subject property. Appellee thereupon, filed a Motion for Summary Judgment on the main demand, which was granted, declaring the counter letter to be null and void. Appellant’s Exception of No Right or Cause of Action was overruled: This appeal followed.

ISSUES PRESENTED

Appellant raises two arguments on appeal: 1.) That the trial court erred in overruling the exception of No Right or Cause of Action; and 2.) That the sale and resale to Homeseekers should not alter the effect of the counter letter between the parties.

EXCEPTION OF NO RIGHT OR CAUSE OF ACTION

By this argument, appellant maintains that Civil Code Article 2239 provides that only creditors of the decedent and forced heirs have the right to bring an action to set aside a counter letter. Appellant further contends that parole evidence was incorrectly admitted to nullify the counter letter.

It is well settled that forced heirs may attack the simulated contracts of the deceased and, that in bringing such an action, they are not limited to the legitime. La.Civil Code Art. 2239; Johnson v. McCorvey, 344 So.2d 448 (La.App. 2nd Cir.1977); Miles v. Miles, 328 So.2d 394 (La.App. 3rd. Cir.1976). However, these cases, as well as others cited by appellant in support of this rule, are inapposite to the factual situation presented herein.

The jurisprudence cited above applies to the situation where a sale of immovable property is attacked as a simulation. In the case at bar, however, the actual validity of the counter letter was not contested and there was no allegation of a simulation. Rather appellee contends that the subsequent sale and resale of the property had the effect of voiding the then unrecorded counter letter. Under these circumstances we feel the stricture of Article 2239 and cases decided thereunder are inapplicable to the instant claim.

A majority of the cases in this area involve intestate successions. In the present case the petitioner, Joseph’s widow, was bequeathed his undivided one half interest in the subject property. She is thus the real party in interest. Under the present facts, few would have a greater right to bring this action than one who would lose her inheritance should the counter letter be found binding.

Further, appellant contends that the trial court erred in allowing the introduction of certain affidavits which amounted to parole evidence. This contention is based on the fact that there are no forced heirs involved in this case and under Article 2239, only forced heirs have the absolute right to employ parole evidence to set aside a purported sale as a simulation.

However, as noted above, the present action does not involve any allegations of simulation. Moreover, assuming that Article 2239 should apply we find that the record before the trial court .was sufficient to support its holding even without considering the affidavits.

The court below considered the sworn deposition testimony of the appellant, Helen Poche, stating that she was aware of the changed status of the property after the act of sale and resale. Further, decedent’s will bequeaths his undivided one-half interest in the property to his widow, appellee herein. This manifestation of decedent’s intent evidences his belief that he had become a true co-owner despite the fact that he had previously executed a counter letter denying ownership. Finally, the record reflects that the appellant was present when the will was drafted and did nothing to contradict the disposition of the subject property. These facts clearly indicate that all the parties were or should have been aware of the joint ownership of the property once appellant knowingly placed her name on the Act of Sale and Resale as co-owner with her brother.

SALE AND RESALE OF THE PROPERTY

The jurisprudence recognizes that the sale and resale of property to and by a Homestead is merely a method of refinancing which protects the Homestead by providing it with a vendor’s lien on the property-

Appellant correctly states that where one sells his property to a Homestead, which in turn resells it to the same person, the status of that property remains unchanged. Cookmeyer v. Cookmeyer, 274 So.2d 739 (La.App. 4th Cir.1973). However, this rule originated in cases in which the issue was whether the sale and resale changed the classification of the property from separate to community or vice versa.

The facts in the instant case are unique in that the owner of record, Joseph Tucker, sold the property to the Homestead which resold it to Mr. Tucker and his sister jointly. Thus the status of the property as community or separate is not the issue. The fact that Mrs. Poche was specifically named on the act of resale as co-owner with Mr. Tucker distinguishes this case from those cited by appellant and directly supercedes the previously unrecorded counter letter. The record clearly establishes that after the sale and resale, all parties were aware that the property was jointly owned by Joseph and Helen.

CONCLUSION

The executrix of Mr. Tucker’s estate, Hazel Tucker, has a right of action herein. The sale and resale to the Homestead nullifies the previously unrecorded counter letter and Mr. Tucker’s undivided one half interest in the Galvez Street property must be disposed of in accordance with the provisions of his will.

For the foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are to be borne by appellant.

AFFIRMED.