author: NORRIS, Judge.

text:
    BASS ENTERPRISES PRODUCTION CO., Plaintiff-Appellee, v. Paul C. KIENE, et al., Defendant-Appellant.
    No. 15,549-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Hargrove, Guyton, Ramey & Barlow, Shreveport by David L. Smelley, for plaintiff-appellee.
    Robert J. Moffatt and Frederic L. Miller, Shreveport, for defendant-appellant.
    Rabun & Post by Armand F. Rabun, Farmerville, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES and NORRIS, JJ.
   NORRIS, Judge.

This appeal involves a concursus proceeding brought by Bass Enterprises Production Company, against defendants, Paul C. Kiene and Minnie Lee Graves, both of whom answered the proceeding, to determine who is entitled to a deposited sum representing production proceeds attributable to a royalty interest in gas and condensate produced from a unit well located in the Southwest Quarter of the Southwest Quarter of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana, for the Cotton Valley Formation, Reservoir A, Hico-Knowles Field. Bass is the operator of the unit well which is presently producing gas and condensate in commercial quantities.

The threshold issue presented by this appeal is: whether operations conducted in connection with a well drilled in 1974 and later plugged in 1975 on a unit, including a portion of the servitude tract but not on the servitude tract itself, constitute sufficient good faith operations for the discovery and production of minerals so as to interrupt the running of nonuse prescription against a mineral servitude created in 1968? The trial court answered affirmatively, and finding no error in the ruling, we affirm.

The following facts are undisputed. On November 20, 1968, Minnie Lee Graves and her husband, W.F. Graves, now deceased, sold the following described property to Paul C. Kiene reserving unto themselves one-half of the minerals:

“SW ¼ of SW ¼ of Section 16; S ½ of SE ¼, Section 17, less and except that portion of the SW ¼ of SE ½ of Section 17 lying and being South and West of the Dubach-Hico Road, Township 20 North, Range 3 West, Lincoln Parish, Louisiana, containing 110 acres, more or less, together with all improvements” (hereinafter sometimes referred to as the “servitude tract”).

By instrument dated June 21, 1974, Mr. and Mrs. Graves granted an oil, gas and mineral lease to Thomas A. Durham with a primary term of five years covering land including the SW ¼ of SW ¼ of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana. On August 19, 1974, Paul C. Kiene granted an oil, gas and sul-phur lease to Bradco Oil & Gas Company with a primary term of five years covering land including.the SW ¼ of SW ¼ of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana.

Effective December 1, 1953, Louisiana Department of Conservation Order No. 137-C-2 created the entirety of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana, as a drilling unit for the McFearin Sand in the Hico-Knowles Field, Lincoln Parish, Louisiana and provided that the unit was subject to the field rules set forth in Louisiana Department of Conservation Order No. 137-C, effective January 9, 1953. A portion of the servitude tract (SW ¼ of SW ¼ of Section 16, Township 20 North; Range 3 West) was included in this drilling unit.

A well was never physically located on any part of the servitude tract drilled for the exploration of hydrocarbons between November 20, 1968 and November 20, 1978. However, on or about October 24, 1974, Bass applied to the Louisiana Department of Conservation for a permit to drill the Paul C. Kiene No. 1 Well to the Smackover Formation at a proposed total depth of 11,-500 feet. The drilling of this well was a good faith operation for the discovery and production of oil, gas and other minerals, that is drilling to a depth at which there was reasonable expectation of commercial production. Located on the SW ¼ of SE ¼ of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana, the Kiene No. 1 Well was spudded by Bass on November 11, 1974 and drilled by Bass to a depth of 10,746 feet. On or about January 14, 1975, CSC/IMC Exploration took over operations of the well from Bass and continued drilling to a total depth of 11,520 feet, which was reached on or about February 9, 1975. This well was commercially unproductive of hydrocarbons from the Smack-over Formation and on or about February 10, 1975, was plugged back to a depth of approximately 9,084 feet. On or about February 12, 1975, casing was run in the Kiene No. 1 Well to a depth of 9,075 feet in order to facilitate testing of various intervals in the well above the Smackover Formation. Thereafter, it was determined that the Kiene No. 1 Well was not capable of commercial production of hydrocarbons from any zone, and the well was plugged and abandoned on or about July 15, 1975.

By Louisiana Office of Conservation Order No. 137-X, effective June 21, 1978, as amended by Order No. 137-X-l, effective December 12, 1978, a drilling and production unit comprising the entirety of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana, was established for the exploration for and production of gas and condensate from the Cotton Valley Formation, Reservoir A, in the Hico-Knowles Field, Lincoln Parish, Louisiana. A portion of the servitude tract, particularly the SW ¼ of SW ¼ of Section 16, Township 20 North, Range 3 West, is included in this unit. On or about May 6, 1979, Bass spudded the Etta H. Colvin No. 3 Well on the unit. This well has been completed and is presently producing gas and condensate in commercial quantities from the Cotton Valley Formation, Reservoir A, Hico-Knowles Field, Lincoln Parish, Louisiana. The Colvin No. 3 Well is the unit well and Bass is its operator. The portion of the proceeds of production from this well amounting to a .00390786 royalty interest attributable to one half of the oil, gas and other minerals in and under the SW ¼ of SW ¼ of Section 16, Township 20 North, Range 3 West, Lincoln Parish, Louisiana is the disputed amount arising from the conflicting claims of Kiene and Graves. The competing claims arise from a dispute as to whether the mineral servitude created in the sale from W.F. Graves and Minnie Lee Graves to Paul C. Kiene on November 20, 1968, has lapsed by ten year liberative prescription.

In addition to the aforementioned facts obtained from the stipulations of the parties, the following findings of fact were made by the trial court after considering testimony and numerous exhibits. During the time that Bass operated the Kiene No. 1 Well, prior to transferring it to CSC/IMC, the following logs were run on the well which evaluated the McFearin Sand: (1) dual induction lateral log; (2) density neutron log; (3) micro log and (4) mud log. These logs were run to gather information regarding the potential of the McFearin Sand while the well was initially being drilled to the Smackover Sand. After taking over the operations of the Kiene No. 1 Well, CSC/IMC engaged the services of an independent oil and gas consulting firm to evaluate the information previously obtained to determine the productive possibilities of and the procedure and cost to test the McFearin Sand in the well. It was the opinion of these consultants that the McFearin Sand merited testing. Based on these recommendations, on March 31, 1975, CSC/IMC applied to the Louisiana Office of Conservation for a work permit to perforate and acidize the McFearin Sand in the Kiene No. 1 Well. The permit was granted, the sand was perforated and acidized between April 5-6, 1981, and the procedure failed to establish commercial production from the McFearin Sand. On June 5, 1975, another work permit was granted to further test the McFearin Sand in the Kiene No. 1 Well. The well was then tested by fracing the sand; however, this procedure also failed to establish commercial production of hydrocarbons from this sand in the well. The well was plugged and abandoned on July 15, 1975. All of the tests on the McFearin Sand in the well were for the purpose of establishing the commercial production of gas and condensate from the well. Had the testing resulted in a determination that the well was capable of commercial production from the McFearin Sand, then an exceptional location could have, and more probably than not, would have been granted for the well to produce from this sand. All of these factual findings are supported by the record.

Based on the foregoing, the trial court found that the evidence reflected a good faith operation and a bona fide attempt to obtain production from the McFearin Sand by the operations connected with the Kiene No. 1 Well which served to interrupt the running of prescription on that portion of the servitude tract located within the McFearin unit.

Kiene appeals contending that the trial court erred:

(1) In overruling the objection made at trial by Counsel for Appellant, Paul C. Kiene, to the introduction of any evidence concerning an alleged test of the McFea-rin Sand in the Kiene No. 1 Well as either being outside the scope of the pleadings of Bass Enterprises Production Co. or, alternatively, a collateral attack on the orders of the Commissioner of Conservation, as contained in Order No. 137-C and 137-C-2.
(2) In finding that the operations conducted by Bass Enterprises and CSC/IMC were good faith unit operations pursuant to Department of Conservation Order 137-C.
(3) In finding that operations on the Kiene No. 1 Well, a well located off the servitude premises, were sufficient to interrupt liberative prescription running against the Graves Servitude.
(4) In finding Minnie Lee Graves Servitude to be maintained and, accordingly, Minnie Lee Graves to be the owner of the royalties at stake in this concursus proceedings.

In connection with the first assignment of error, Kiene argues that the testimony of two witnesses, Larry Hoover and Ray Waterman, regarding the testing of the McFearin Sand is outside the scope of the pleadings because this issue was only raised within the answer and reconventional demand of Graves which was severed in an earlier pre-trial ruling and there was no testimony at the trial which could have expanded the pleadings. In the alternative, Kiene contends that the testimony is inadmissible because it is a collateral attack on the orders of the Commissioner of Conservation which have the force of law.

Our review of the pleadings compels us to conclude that the entire thrust of this concursus proceeding was to determine whether the mineral servitude created in the deed from Graves to Kiene had lapsed by ten year prescription or had been maintained by good faith drilling operations sufficient to interrupt prescription on the portion of the servitude tract located within the McFearin Unit. This is obvious from the language of the petition; therefore, the introduction of this evidence did not serve as an expansion of the pleadings. Based on our system of fact pleading as contained within the Code of Civil Procedure, [La.C. C.P. Arts. 854, 891, 1003 and 1004], there are sufficient allegations contained within the record to support the trial court’s finding that this testimony was admissible. Furthermore, a trial court is given discretion in determining whether to allow evidence objected to on the ground that it is not within the scope of the pleadings. Huhn v. Marshall Exploration, Inc., 337 So.2d 561 (La.App. 2d Cir.1976). There was no abuse of that discretion in allowing this testimony.

Kiene’s argument that the testimony is a prohibited collateral attack on Orders of the Commissioner of Conservation is likewise without merit. A reading of the orders themselves reveals that the well location provisions contained therein are subject to variances when the proper procedures are followed. It is further apparent from the testimony of the representative of the Office of Conservation that exceptional locations can be and are approved after a hearing either before or after a particular well is drilled. This witness further testified that he had never known of such a request to-be denied when a well had been tested and found to be commercially productive. Additionally, the record contains two permits obtained from the Office of Conservation specifically permitting the testing done in the McFearin Sand. These orders are equally applicable to the instant case. The evidence admitted over the objection is directly material to and connected with the testing done on the McFearin Sand in accordance with the permits issued by the Office of Conservation. Based on all of the circumstances of this case, we find no prohibited collateral attack on an order issued by the Commissioner of Conservation. Compare Pierce v. Goldking Properties, Inc., 396 So.2d 528 (La.App. 3d Cir.1981); Brown v. Alice-Sidney Oil Co., 343 So.2d 745; United Gas Pipeline Co. v. Watson Oil Corp., 306 So.2d 731 (La.1975); Simmons v. Pure Oil Co., 241 La. 592, 129 So.2d 786 (1961).

Accordingly, the trial court properly allowed the objected to testimony.

The remaining three assignments of error can be considered simultaneously because their main thrust is directed to the argument that because the Kiene Well was initially primarily intended to test the Smack-over Sand rather than the McFearin Sand and because the well was not located on the servitude tract itself that it could not interrupt prescription based on the activities engaged in to test the McFearin Sand.

La.R.S. 31:27 provides in pertinent part: A mineral servitude is extinguished by:
(1) prescription resulting from nonuse for ten years;
La.R.S. 31:28 provides:
Prescription of nonuse of a mineral servitude commences from the date on which it is created.
La.R.S. 31:29 provides:
The prescription of nonuse running against a mineral servitude is interrupted by good faith operations for the discovery and production of minerals. By good faith is meant that the operations must be
(1) commenced with reasonable expectation of discovering and producing minerals in paying quantities at a particular point or depth.
(2) continued at the site chosen to that point or depth, and
(3) conducted in such a manner that they constitute a single operation although actual drilling or mining is not conducted at all times.
La.R.S. 31:33 provides:
Operations conducted on land other than that burdened by a mineral servitude and constituting part of a conventional or compulsory unit , that includes only a part of the land burdened by the servitude will, if otherwise sufficient to interrupt prescription according to Articles 29 through 32, interrupt prescription only as to that portion of the tract burdened by the servitude included in the unit provided such operations are for the discovery and production of minerals from the unitized sand or sands.

The question of whether the operations engaged in in connection with a particular well constitute a use of the servitude in such a manner as to interrupt the running of prescription is a question of fact dependent upon the particular circumstances under which the operations were conducted and the factor of good or bad faith on the part of the operators is inextricably connected with, although perhaps not wholly decisive of, the factual situation presented. Kellogg Bros. Inc. v. Singer Mfg. Co., 131 So.2d 578 (La.App. 2d Cir.1961).

In the instant case, there is no issue raised as to the good faith of Bass Enterprises in its initial drilling of the Kiene No. 1 Well to the Smackover Formation. However, Kiene does dispute that the operations by Bass and CSC/IMC on this well in the closing days of 1974 and the first half of 1975 were good faith operations directed toward the discovery and production of hydrocarbons from the shallower unitized McFearin Sand. In essence, Kiene argues that the well was commenced as a wildcat well to test the Smackover Formation and that no objective intent can be found to tie the well, from the time of commencement through drilling to total depth in the Smackover Formation, to any type of test of the McFearin Sand. Therefore, it is contended that such operations were clearly not bona fide unit operations as required by Article 33 of the Mineral Code.

In support of this argument, Kiene cites Matlock Oil Corp. v. Gerard, 263 So.2d 413 (La.App. 2d Cir.1972). In Matlock, this court was faced with the identical issue presented in the instant case. There, a mineral servitude present on land in the SW ¼ of Section 33, Township 22 North, Range 4 West in Claiborne Parish was kept alive by a producing well on the servitude tract until the well was physically plugged and abandoned in May, 1960. The Matlock-Fuller No. 1 Well had been drilled in 1969 within the geographical confines of the Lower Hosston Formation Unit created by a Conservation Order on February 1, 1966. This unit contained the servitude tracts within its confines but the Fuller No. 1 Well was located off the servitude tracts. In January, 1969, the Lower Hosston Formation was penetrated by the well bore of the Fuller No. 1 Well; however, no tests were performed with respect to the Lower Hosston Formation. In Matlock, appellants contended that the mere act of drilling the well through the Lower Hosston Formation on the drilling and production unit established for that formation interrupted the running of prescription and preserved the mineral servitudes in question which were located within the unit. However, in Mat-lock, this court determined that “good faith” drilling means a bona fide attempt to obtain production and then sought to determine whether appellants had made a bona fide attempt to obtain production from the unitized Lower Hosston Formation thereby exercising their servitudes as to other tracts within the unit before liberative prescription had run. The permit obtained in Mat-lock was for an oil well to be drilled to the Smackover Formation rather than a permit to drill for minerals. There was no evidence whatsoever that any procedures were utilized to evaluate the productive possibilities of the Lower Hosston Formation on the way to the Smackover Formation. Testimony in Matlock was to the effect that the usual practice was to install a mud logging unit several days in advance of the time a prospective formation was encountered. There, the mud logging unit was not installed until the drilling had almost passed through the Lower Hosston Formation. There was no inquiry made regarding the production of Lower Hosston wells even though there was a well nearby which had produced from that formation. The daily drilling report was not begun until after the drilling had completely passed through the Lower Hosston Formation and that report showed conclusively that the real testing of the well was conducted after the Lower Hosston Formation had been traversed. Based upon these particular factual findings, the court concluded that appellants simply never intended to test or actually tested the Lower Hosston Formation through this particular well; therefore, there was not good faith drilling as to the unit established for drilling and production from the Lower Hosston Formation. In other words, the record did not support a finding that the operations off the servitude tracts in connection with this particular well were directed toward discovery and production from the unitized Lower Hos-ston Formation. Thus, there was no use of the servitude within ten years sufficient to interrupt the running of liberative prescription.

In the instant case, while Bass was 'the operator of the Kiene No. 1 Well and while drilling through the MeFearin Sand, the following logs were run in the well to gather information concerning the MeFearin Sand: (1) dual induction lateral log; (2) density neutron log; (3) micro log; and (4) mud logs. This information is useful and necessary in evaluating the potential of a sand as it relates to the production of hydrocarbons. Additionally, a formation test was run in the MeFearin Sand before the well reached its total depth in the Smack-over Sand. Thereafter, CSC/IMC took over as operator of this well and completed the well to the proposed depth in the Smack-over Formation. Upon finding that the well was commercially unproductive of hydrocarbons in the Smackover Formation, the well was plugged back to a depth of 9,075 feet in order to facilitate testing at higher intervals, including the MeFearin Sand, in an attempt to obtain commercial production of hydrocarbons from the Kiene No. 1 Well. CSC/IMC engaged the services of a firm of consulting petroleum engineers and geologists to evaluate the information obtained on the MeFearin Sand and to investigate the productive possibilities of that formation. Based upon their recommendation that the information created a reasonable expectation of discovering and producing gas in paying quantities and thus that the MeFearin Sand merited further testing at a projected cost of $23,775, CSC/IMC applied for and received a permit from the Louisiana Office of Conservation to perforate and acidize the MeFearin Sand in the well. Thereafter, another permit was obtained to further test the sand by fracing which was also completed. Finally, it was determined that the well was commercially unproductive and it was plugged.

This case is clearly factually distinguishable from Matlock. The facts as evidenced in Matlock reveal that the only contact with the Lower Hosston Formation was drilling through it and clearly reflect a lack of intent or effort at any time during the continuous operation to obtain production from the Lower Hosston Formation through the drilling of the Matlock Fuller No. 1 Well. On the other hand, the facts as evidenced in the instant case reflect bona fide, good faith testing of the MeFearin Sand, not only at the time it was initially encountered but also when the well was plugged back to a depth sufficient for further testing. The evidence reveals one continuous operation begun in good faith primarily for the discovery and production of minerals from the Smackover Formation but also evidencing an intent during that continuous operation to obtain information from and to actually test the MeFearin Sand. The evidence further reveals that the operators of the well had information regarding the MeFearin Sand that created a reasonable expectation of discovering and producing minerals in paying quantities from that depth when they actually tested the sand. La.R.S. 31:29.

Accordingly, the operations conducted in connection with the drilling of the Kiene No. 1 Well constituted a bona fide, good faith testing of the McFearin Sand in an effort to obtain production therefrom and these operations were sufficient under La. R.S. 31:29 to interrupt the running of the ten year liberative prescription. Because the operations on the unitized tract but off the servitude tract were sufficient to interrupt prescription under La.R.S. 31:29, they interrupted prescription only as to that portion of the servitude tract included within the unit. La.R.S. 31:33. Therefore, with respect to that part of the Graves servitude which is situated within the McFearin Sand Unit for Section 16 established by Office of Conservation Order No. 137-C-2, prescription was interrupted, and all rights of Minnie Lee Graves under the servitude granted in the deed of November 20, 1968, were in full force and effect at the time of the drilling of the Colvin No. 3 Well insofar as they affected that portion of the servitude tract included within the McFearin Unit.

Accordingly, the judgment of the trial court is affirmed at the cost of appellant.


source: Caselaw Access Project

license: Public Domain

text:
    Elaine Claire Buckley GOINS, Plaintiff-Appellee, v. Charles Nelson GOINS, Defendant-Appellant.
    No. 15550-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      David R. Buckley, Port Allen, for plaintiff-appellee.
    Jim W. Wiley, Winnfield, for defendants appellant.

      Before PRICE, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Charles Nelson Goins appeals a judgment reducing the amount of child support payments previously awarded, accruing past due amounts of child support and finding him in contempt of court for nonpayment, assigning the following errors:

(1) Whether the trial court abused its discretion in finding Charles Goins in contempt of court for failure to pay support;
(2) Whether the trial court abused its discretion in the exercise of its contempt powers;
(3) Whether or not the trial court erred in setting progressive child support payments; and
(4) Whether the court abused its discretion in awarding the sum of $150 per month as child support.

The parties were separated by judgment rendered and signed on the 28th day of August, 1980, which ordered Mr. Goins to pay child support for one minor child in the amount of $300 per month. On January 21, 1982, Mr. Goins petitioned for divorce and asked that the child support previously fixed be reduced to $100 per month. Mrs. Goins answered the suit on February 17, 1982 and no further activity is reflected by the record until October 26,1982, when Mrs. Goins filed a rule seeking to recover arrear-ages in child support payments due under the separation judgment, for contempt and for reasonable attorney’s fees. On November 17,1982, Mr. Goins filed a rule to reduce the child support from $300 per month to $100 per month. These rules were heard in connection with the trial on the divorce on December 13, 1982.

Evidence adduced at trial revealed that Mrs. Goins was unemployed as a result of her having voluntarily left her previous employment. She testified that she was physically and mentally able to work but was receiving food stamps, a medical card and $123 per month from the support enforcement agency. Mr. Goins testified that he was unemployed as a result of his having been terminated and that he was receiving unemployment benefits of $160 per week. While he had made numerous job applications, he had been unable to secure employment because of the depressed state of the economy. During a large portion of the arrearages’ period, Mr. Goins was unemployed and receiving unemployment benefits. The parties stipulated the arrearages to be $5735.

After hearing all of the evidence, the trial court granted the divorce; maintained custody with Mrs. Goins; fixed child support at $100 per month until April 1, 1983, at which time it would be increased to $150 per month; fixed the arrearages in the stipulated amount and made that amount executory; awarded attorney’s fees of $300; found Mr. Goins to be in contempt of court and sentenced him to pay a fine of $200 and to serve a jail term of 30 days. The jail sentence was suspended and Mr. Goins was placed on unsupervised probation subject to the following conditions:

(1) That he maintain a current status on child support payments; and

(2) That he liquidate the arrearages in the following manner:

(a) That he make a payment in the amount of $500 on or before January 15, 1983;
(b) That he execute a promissory note on or before January 15, 1983, in the amount of $5235 bearing interest in the amount of 12%, providing for 20% attorney’s fees, and providing for payments in installments sufficient to liquidate the amount of the note in five years; and
(c) That he pay the $300 attorney’s fees awarded in connection with the rule within six months.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment of error, Mr. Goins argues that the trial court abused its discretion in finding him to be in contempt of court because he was unemployed for a substantial portion of time during the period covering the arrearages which precluded him from meeting his child support obligation. He argues that his default was not of his own voluntary choosing but was a result of the depressed economy.

Prior to any discussion of this assignment, we note that although there has been no question raised regarding this court's authority to review a contempt judgment on direct appeal rather than by application for supervisory writs, there exists within the jurisprudence a conflict as to the proper procedure for seeking review of a contempt finding. However, it has been the practice of this court to review such an issue raised in connection with an appeal, and we will address the merits of this issue contained within this appeal. See Fontana v. Fontana, 426 So.2d 351 (La.App. 2d Cir. 1983); Woodall v. Woodall, 397 So.2d 524 (La.App. 2d Cir.1981).

Mr. Goins’ argument was expressly considered and rejected by the trial court which found that Mr. Goins had not made a conscientious effort to pay child support. Although as a general rule, failure to pay child support resulting from the obligor’s financial inability to pay cannot support a contempt charge, this finding is primarily factual and a trial court’s finding thereon should not be disturbed absent manifest error. Fontana v. Fontana, supra. The record indicates based on Mr. Goins’ stipulation that he was in arrears in the amount of $5735 for the period of time extending from August 28, 1980 until December 13, 1982. It is noteworthy that for extended periods during this time span, Mr. Goins was unemployed. Yet he never attempted to exercise any of the legal remedies available to him to have his child support payments reduced because of his altered circumstances until after Mrs. Goins filed a rule to have the past due support made executory. While we are not unsympathetic with Mr. Goins’ predicament, we cannot say that the trial court was clearly wrong in finding that Mr. Goins’ failure to pay this amount of support was willful and without legal excuse.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Mr. Goins then argues that the trial court abused its discretion in the exercise of its contempt powers. More particularly, Mr. Goins argues that while the judgment imposing the $200 fine and the thirty day jail sentence is within the power of the court, the court’s conditions of probation are severe and inconsistent with the evidence and do not provide a constructive manner to relieve Mr. Goins of the jail sentence. He particularly notes that he is being forced to execute a promissory note to reflect the judgment amount and to undertake the additional condition of paying 20% attorney’s fees if he is unable to comply with the payment provisions of the note. Finally, he argues that he will be exposed to the jail sentence if he is unable to pay the attorney’s fees within six months. He contends that such a severe sentence on his first occasion in court is unwarranted.

Contempt proceedings in civil cases are regulated by La.C.C.P. Arts. 221-227 and La.R.S. 13:4611.

La.C.C.P. Art. 224 provides in pertinent part:

A constructive contempt of court is any contempt other than a direct one.
Any of the following acts constitutes a constructive contempt of court:
* ⅜! * ⅜ % *
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;
La.C.C.P. Art. 227 provides:
A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law.
The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in R.S. 13:4611.

La.R.S. 13:4611 prpvides in pertinent part:

Except as otherwise provided by law:
(A) The supreme court, the courts of appeal, the district courts, family courts and city courts may punish a person adjudged guilty of contempt of court therein, as follows:
* * * * * *
(4) For any other contempt of court, by a fine of not more than two hundred and fifty dollars, or imprisonment for not more than thirty days, or both.

Once a criminal sentence is imposed in a contempt proceeding ancillary to a civil proceeding, the proceeding assumes the quality of a criminal or quasi-criminal proceeding. Fontana v. Fontana, supra; Ourso v. Ourso, 282 So.2d 157 (La.App. 4th Cir.1973). After the imposition of a sentence in a contempt proceeding, the proceeding becomes subject to the provisions of the Code of Criminal Procedure regarding the execution of sentences. Ourso v. Ourso, supra.

While it is recognized that a defendant has no right to a suspension of sentence in a contempt proceeding, but, in fact, is the beneficiary of the court’s clemency when such a suspended sentence is imposed [Wicker v. Wicker, 373 So.2d 210 (La.App. 4th Cir.1979)], in this case, the trial court chose to afford Mr. Goins the privilege of probation and suspended sentence. Although it was not obligated to be so lenient, once the trial court chose to suspend the execution of the sentence, it was mandated to follow the provisions of La.C.Cr.P. Art. 894, with its attendant limitations. La.C.Cr.P. Art. 894 provides in pertinent part:

A. When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised or supervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.
The court may suspend a misdemeanor sentence after the defendant has begun to serve the sentence.

La.C.Cr.P. Art. 895 provides in pertinent part:

A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, ...

Under Article 895, the trial court may impose any specific condition of probation which is reasonably related to a defendant’s rehabilitation. However, a condition that is so harsh that the probationer is destined for failure serves no purpose. State v. LaBure, 427 So.2d 855 (La.1983). Here, the trial court chose to not only suspend the imposition of the sentence but to impose certain conditions which Mr. Goins argues are so severe as to render them unworkable. Conditions of probation are reviewable even absent specific assignments of error as patent errors in criminal cases. State v. La-Bure, supra. Under the rationale of Dove v. Dove, 386 So.2d 127 (La.App. 3d Cir. 1980), a jail sentence imposed under La.R.S. 13:4611 upon a person adjudged guilty of contempt is reviewable for excessiveness under State v. Sepulvado, 367 So.2d 762 (La.1979). See also, Fontana v. Fontana, supra. Extending the rationale of the aforementioned cases, we conclude that conditions of probation imposed on a person adjudged guilty of contempt under La.R.S. 13:4611 are reviewable to determine whether or not they are erroneous.

While recognizing that the purpose of probation in criminal cases is to promote the defendant’s rehabilitation by allowing him or her to reintegrate into society [State v. Carey, 392 So.2d 443 (La.1981)], the purpose of probation in contempt matters involving the non payment of support appears to us to be somewhat different. In such a proceeding, the purpose of probation should be to allow a party to remain out of jail in order that he or she is able to continue his or her employment [or seek employment for that matter] in order to fulfill the support obligation and to encourage the party to discharge that support obligation. Therefore, conditions of probation imposed should be reasonably related to the discharge of the accrued obligation and the maintaining of support payments on a regular, current basis. Any condition of probation which does not facilitate in the accomplishment of this purpose is unreasonable. In the instant case, the requiring of the maintenance of child support payments on a current basis is reasonable, as is the requirement of the lump sum payment to Mrs. Goins and the payment of the attorney’s fees within six months.

While the requirement of the execution of the note is certainly designed to provide a method of payment of accrued support, we find that this condition of probation is illegal and therefore erroneous. First of all, La.C.Cr.P. Art. 894 provides that the period of probation in a misdemeanor case or in a case such as is presented herein cannot exceed two years. Probation must be for a specified time and it cannot be extended. State v. Guillory, 363 So.2d 511 (La.1978). Under Article 894, the word “condition” relates to stipulations exacted from the probationer concerning his conduct during the probationary period. State v. Guillory, supra. Under Article 894, there is no reference made to an extension of any period of time as a condition of probation. State v. Guillory, supra. Therefore, by analogy, conditions of probation cannot be utilized to extend the probationary period nor can they be extended beyond the term of the probation. State v. Guillory, supra. By being forced to execute the promissory note in question, Mr. Goins is being required to obligate himself to do certain things beyond the legally permissible time limitations of the applicable article. The requiring of installment payments which extend over a five year period serves to place conditions of probation that extend for five years, three years longer than the maximum period of probation provided for in such cases by law. We conclude that this requirement is invalid.

Furthermore, the requiring of the signing of this note, while well intended, is unrealistic and unnecessary because the judgment is evidence of the debt owed and there is no necessity to sign a subsequent instrument which evidences the identical debt. Additionally, the note subjects Mr. Goins to more burdensome obligations than the judgment in the event of nonpayment of the note in the form of 20% attorney’s fees. Mrs. Goins has already been awarded all of the attorney’s fees to which she is legally entitled in connection with the collection of this arrearage. La.R.S. 9:305. Therefore, we conclude that a trial court may not by the requiring of the execution of a note in connection with the collection of arrearages in support payments require a party in default of his payments to be subjected to additional attorney’s fees in the form of those provided for by a promissory note.

While not called upon to resolve future legal problems which may occur as a result of the execution and enforcement of this note — and the judgment for that matter — after the note is executed, we simply observe that by encouraging the execution of promissory notes in the enforcement of support judgments, we may be opening the proverbial “Pandora’s box” for future courts in resolving legal questions which may arise, such as — whether the note or the judgment is the evidence of the obligation, the validity of a note executed under such conditions of “judicial duress” insofar as it relates to consent, the effect of the holder’s negotiating the note to a third party, whether the execution of the note novates the judgment, what remedies the judgment creditor or the holder of the note has available to collect the obligation, etc.

Because we have concluded that the condition of probation requiring Mr. Goins to execute the promissory note is illegal and erroneous, he must be resentenced. Consequently, we set aside the sentence and remand the case for resentencing in accordance with the views expressed herein, noting for the trial court that a person found in contempt of court cannot be penalized for exercising his right of review and on remand cannot be sentenced more severely than originally. In Re Merritt, 391 So.2d 440 (La.1981). Therefore, the trial court must suspend the imposition of the sentence but must place conditions on the probation which are in accordance with law.

ASSIGNMENTS OF ERROR NOS. 3 and 4

In connection with these assignments, Mr. Goins argues that in setting child support payments at $100 per month until April 1, 1983 and then increasing the amount to $150 per month thereafter, the court committed error. We initially note that because there is no suspensive appeal from a judgment awarding support [La.C. C.P. Art. 3943], and because this is a devolu-tive appeal, that there is nothing for us to review in connection with the propriety of the acceleration of the amount of the payments since April 1, 1983 has long passed. We have reviewed the record and find that the award of $150 per month for support is not an abuse of discretion. If we accepted Mr. Goins’ argument, we would have to assume that he intends to remain on unemployment benefits ad infinitum. In reality, not only is he prohibited from collecting such benefits on an unlimited basis and for an unlimited duration, but he is also in a financial situation where he is going to have to make some arrangements for future employment, if he has not already done so at the time of the rendition of this opinion. A trial judge is given great discretion in making an award of support, and we will not disturb such awards in the absence of a showing of an abuse of that discretion. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir.1979). There has been no such showing made here.

Accordingly, we affirm the judgment of the trial court except as it relates to the sentence imposed for contempt which we vacate and we remand this matter to the district court for sentencing in accordance with the views expressed herein.

JUDGMENT AFFIRMED in PART; CONTEMPT SENTENCE VACATED, and CASE REMANDED.

      . In the trial court’s oral reasons for judgment, the trial court indicated that the period of probation would be for one year. However, in the subsequent written judgment and the corrected memorandum judgment, there is no mention of the length of the probationary period.

      . See and compare: McMicken v. Perin, 61 U.S. 20 How. 133, 15 L.Ed. 857; State v. Louisiana Public Service Commission, 161 La. 293, 108 So. 487; City of Gretna v. Rossner, 154 La. 117, 97 So. 335; State v. Judge Parish Court, 31 La.Ann. 116; Succession of Carriere, 34 La. Ann. 1056; Matter on Carter, La.App., 357 So.2d 1175, writ denied, La. 358 So.2d 949; Pasternack v. Lubritz, La.App. 280 So.2d 352; Wall v. Wall, La.App., 230 So.2d 420; The Advertiser v. Tubbs, La.App., 199 So.2d 426; Weaver v. Weaver, La.App., 181 So.2d 61, writ denied, 248 La. 1031, 183 So.2d 652; Moity v. Mahfouz, La.App., 137 So.2d 513, writ denied, 242 La. 625, 137 So.2d 514; State v. Tangipahoa Parish School Board, La.App., 9 So.2d 826. Contra, see Frazier v. Frazier, La.App., 374 So.2d 198; City of Monroe v. Evans, La.App., 385 So.2d 912, and cases cited therein.

      . Because of the particular posture of this case in that Mr. Goins took a devolutive appeal from the entire judgment and there is no evidence that a stay order was granted by the trial court, we are aware of the possibility that all of this discussion pertaining to the conditions of probation imposed in connection with the jail sentence may be moot since the trial court’s ruling has not been stayed or suspended. While we have chosen to address this issue in connection with this appeal, this possibility of mootness may lend credence to those cases which hold that such a ruling is more properly handled in connection with a writ application wherein the appellate court can issue the appropriate relief at a time much closer to the imposition of the sentence and in a manner that will properly afford the applicant relief if appropriate.

      . This entire discussion is predicated upon the particular, unique posture of this case. Mrs. Goins has not appealed nor answered this appeal. In fact, her attorney has not even filed a brief in connection with the appeal. We note that although not raised as an issue, that an award of past due support is a property right which belongs to the person from whom the support has been withheld. Courts are required to make such awards executory and cannot allow the debtor to pay such amounts in installments. See Vinet v. Vinet, 184 So.2d 33 (La.App. 4th Cir.1966); Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975); Vaughan v. Vaughan, 415 So.2d 483 (La.App. 1st Cir. 1982). Because the award has been made ex-ecutory, Mrs. Goins has a right to pursue whatever legal remedies are available to her to collect on the judgment in its entirety at a point in time of her choosing. The interjection of a note with all of the attendant problems which we have mentioned in the body of this opinion may well serve to obviate the legal remedies which are legally Mrs. Goins’ by operation of law.


author: PRICE, Judge.

text:
    Danny LENARD, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION, Defendant-Appellant.
    No. 15551-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Michael C. Barron, Baton Rouge, for defendant-appellant.
    Farrar & Jefferson by Stephen A. Jefferson, Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   PRICE, Judge.

Plaintiff filed this suit for restricted driving privileges after suspension of his driver’s license by the defendant upon his conviction for DWI and was granted such privileges on economic hardship grounds by the district court. Defendant appeals.

This case arises from plaintiff’s conviction on charges of DWI and violation of the revocation of his license on November 20, 1980. Defendant suspended his license pursuant to La.R.S. 32:414 and plaintiff filed a petition for a restricted license after receiving no relief through administrative proceedings.

Defendant filed an answer at the hearing on this matter with an attached certified copy of plaintiff’s record showing traffic convictions and drivers license suspensions for the previous five years. While this exhibit was not offered into evidence, plaintiff testified as to that portion of its contents the department maintains is relevant to these proceedings. That is, he admitted he had previously been convicted of a DWI offense in Bastrop City Court on July 2, 1979. He also testified that his driver’s license had been suspended for six months under La.R.S. 32:667 for refusal to take the photoelectric intoximeter test in connection with that incident.

Defendant argues that this earlier suspension precludes plaintiff from seeking restricted driving privileges because La.R.S. 32:415.1 authorizing such privileges applies only upon one’s first suspension. It contends first that plaintiff’s petition failed to state a cause of action because he did not and could not allege that the present suspension was his first. However, no such exception was filed in the trial court and evidence was taken without objection, including testimony with regard to the issue of a previous suspension. The pleadings have thus been effectively amended and we find it unnecessary to determine whether plaintiff’s petition states a cause of action as written. See Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960).

Defendant alternatively argues that the trial court erred as a factual matter in granting restricted driving privileges under La.R.S. 32:415.1 to a plaintiff whose license has been suspended more than once. That statute provides as follows:

A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414 and R.S. 32:415 said person, after initial notice from the department, shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted, by the department, a restricted license to enable the person to continue to support his family.

Although plaintiff did not see fit to provide this court with a brief, he apparently contends that a suspension under La.R.S. 32:667 does not constitute a previous suspension within the language of La.R.S. 32:415.1 since it refers only to suspension as provided for under La.R.S. 32:414 and 415. In our view, even if the 667 suspension is not considered a first suspension under the economic hardship statute 32:415.1 and petitioner is entitled to apply for limited driving privileges, plaintiff failed to establish that revocation of his driving privileges will deprive him or his family of the necessities of life or prevent him from earning a livelihood.

Plaintiff’s testimony was the only evidence adduced at trial. He testified that he is divorced and has one child for whom he owes child support of $150 a month. He is employed as superintendent by Ouachita Valley Construction, a corporation in which he is fifty percent owner. Plaintiff in effect runs the company and receives an annual salary of approximately $20,000. The company performs construction work on roads, bridges, oil wells, and the like in the northeast area of the state and plaintiff supervises the work of his five-man crew on the various jobs.

Plaintiff testified he needs driving privileges to get to the job site in order to perform his duties. However, he also testified he has at least one employee, a laborer, who could drive him to and from the site when he is not doing anything else. In fact, he has done so in the past. This court is not convinced under these circumstances that petitioner could not make some arrangement for transportation which would enable him to continue to fulfill his duties as supervisor in his own corporation.

The trial court was clearly wrong in concluding petitioner established that revocation of his license would prevent him from earning a livelihood or deprive him or his family of the necessities of life. See Arcen-eaux v. Domingue, 365 So.2d 1330 (La.1978); Rankin v. State, Department of Public Safety, 385 So.2d 894 (La.App. 2nd Cir.1980). Considering the state of plaintiffs driving record, which was admitted at trial, and the failure to sustain his burden of proof, we find the trial court abused its discretion in granting this plaintiff restricted driving privileges.

For the reasons assigned, the judgment appealed is REVERSED. All costs of this appeal are assessed against plaintiff-appel-lee.

REVERSED.

      . It is evident plaintiffs license was under revocation at the time of this latest offense of November 1980 for which the department has now suspended his license inasmuch as he was convicted of violating that revocation, but the grounds therefor are not discernible from the rather meager record.


text:
    Jimmie W. GREEN, Plaintiff-Appellant, v. Evelyn TURNER, et al., Defendants-Appellees. John C. LEE, Plaintiff-Appellant, v. Evelyn TURNER, et al., Defendants-Appellees.
    Nos. 15555-CA, 15556-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for plaintiff-appellant, Jimmie W. Green.

      Drew, White, Drew & Drew by Harmon Drew, Jr., Minden, for plaintiff-appellant, John C. Lee.
    Wilkinson & Carmody by Bobby S. Gilliam, Shreveport, for defendants-appellees, Evelyn Turner and The Western Cas. and Surety Co.
    Jerry H. Bankston, Baton Rouge, for defendant-appellee, Department of Health & Human Resources.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

In these two consolidated suits for personal injuries sustained in an automobile accident, plaintiffs appeal the granting of motions for summary judgment and the sustaining of exceptions of no cause or right of action. We affirm.

The facts giving rise to these lawsuits are undisputed. On December 8, 1980, John C. Lee was the driver of a truck owned by the State of Louisiana and Jimmie W. Green was his passenger. At all pertinent times, Green and Lee were acting within the course and scope of their employment with the Louisiana Department of Transportation and Development. During a heavy rainstorm, Lee parked the truck on the right shoulder of the highway on which Evelyn Turner was proceeding in her personal vehicle. Mrs. Turner’s vehicle skidded into the truck occupied by both plaintiffs causing them to sustain personal injuries. At the time of the collision, Mrs. Turner was acting in the course and scope of her employment with the Louisiana Department of Health and Human Resources.

Although both plaintiffs received worker’s compensation benefits, both sued Mrs. Turner; her employer, the State of Louisiana through the Department of Health and Human Resources; and her personal insurer, Western Casualty and Surety Company. The State filed a peremptory exception of no cause or right of action and a motion for summary judgment in both suits contending that under the provisions of La.R.S. 23:1032 and 1034 plaintiffs’ exclusive remedy against the state is for worker’s compensation benefits. Mrs. Turner and Western filed a motion for summary judgment contending that because Mrs. Turner was a co-employee of Green and Lee, plaintiffs’ exclusive remedy was in worker’s compensation thereby barring any action against Mrs. Turner, their co-employee, as well as her insurer, Western, which is contractually liable to pay only those sums which she is liable to pay.

Both plaintiffs appeal raising the following issues:

(1) Whether or not the trial court erred in granting the motions for summary judgment and sustaining the exceptions of no cause or right of action in favor of the State predicated upon the exclusive remedy provisions of the worker’s compensation act?
(2) Whether or not the trial court erred in granting the motions for summary judgment of Mrs. Turner and Western Casualty and Surety Co. predicated upon the plaintiff’s failure to state a cause of action against Mrs. Turner?

ISSUE NO. 1

Our review of the applicable legislative and jurisprudential rules compels us to conclude that the trial court was correct in granting the motions for summary judgment and sustaining the exceptions in favor of the state. This identical issue has been addressed previously and decided adverse to plaintiffs’ position in McGuire v. Honeycutt, 387 So.2d 674 (La.App. 1st Cir.1980), and Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir.1979). Both of these cases held that even though the parties involved were employed by different divisions or departments of the state, that for the purpose of the applicable worker’s compensation statutes, the state could not occupy a dual capacity but could only occupy the status of employer. Therefore, even though employees of the State of Louisiana may be employed by different departments or divisions and may be performing different functions, the employees only have one employer — the State of Louisiana.

We agree and adopt the rationale underlying the decisions aforementioned applying it to this case. In this instance, plaintiffs and defendant Turner were performing duties to promote the health, safety and welfare of the people of the state when the accident occurred. Thus, all were employees of the State of Louisiana at the time of the accident. Accordingly, the plaintiffs are barred from bringing suit against the State of Louisiana, their employer, in tort under the provisions of La.R.S. 23:1032 and 1034.

ISSUE NO. 2

Having found that both plaintiffs and Mrs. Turner are employees of the same employer, we conclude that neither plaintiff has a cause of action in tort against Mrs. Turner, their co-employee, because the worker’s compensation law extends tort immunity to. a fellow employee. La.R.S. 23:1032, 1034; Fox v. Commercial Union Insurance Co., 396 So.2d 543 (La.App. 3d Cir.1981). Nevertheless, plaintiffs contend that they have a direct action against Mrs. Turner’s liability insurer under La.R.S. 22:655. They further contend that the immunity afforded their co-employee, Mrs. Turner, under the exclusive remedy provisions of the worker’s compensation statutes is personal to her and therefore not available to Western, her insured.

C. Notwithstanding the provisions of Subsection A hereof, any political subdivision may, in its own discretion and by using its own funds available for same, provide workmen’s compensation coverage for its officials, in addition to having to provide such coverage for its employees.

We disagree. We conclude that the bar against recovery from a negligent co-employee who is immune from suit under worker’s compensation statutes is not merely a personal defense to the co-employee but is a defense of no cause of action based on statutory law which is available to the co-employee’s insurer. See Fox v. Commercial Union Insurance Co., 413 So.2d 679 (La.App. 3d Cir.1982); Carlisle v. State Department of Transportation and Development, 400 So.2d 284 (La.App. 3d Cir.1981).

For the foregoing reasons, the trial court’s well written and detailed reasons for judgment, which we incorporate and adopt by reference, were correct. There is no genuine issue of fact in these cases and all defendants are entitled to judgment as a matter of law. Plaintiffs have no cause of action against defendants by operation of law. Accordingly, the judgments of the trial court granting the motions for summary judgment and sustaining the exceptions of no cause or right of action are affirmed at the costs of appellants.

JUDGMENT AFFIRMED.

      . La.R.S. 23:1032 provides:
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.
      La.R.S. 23:1034 provides:
      A The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
      B. Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials excepted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by R.S. 42:1. In this regard, sheriffs’ deputies are, under R.S. 42:1, 33:1433, and 33:9001 et seq., appointed public officers and officials of their respective political subdivisions, the parish law enforcement districts.

      . La.R.S. 22:655 provides:
      No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executo-ry, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors mentioned in Revised Civil Code Article 2315, or heirs against the insurer. The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if the same are not in violation of the laws of this State. It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this State.
      It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Petitioner-Appellee, In the Interest of Sunday LANGLEY, Shane Langley, Jason Langley and Joshua Langley (Clarence Langley, father), Respondent-Appellant.
    No. 15558-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 16, 1983.

      David Haynes, West Monroe, for respondent-appellant, Clarence Langley.
    Earl Cox, Asst. Dist. Atty., Monroe, for State of La., petitioner-appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

The defendant father appeals a judgment which found his children to be victims of neglect and abuse, in need of care, and placed the children in the custody of the State Department of Health and Human Resources and found defendant guilty of abuse and neglect of the children under LRS 14:403.

Defendant contends that the trial court lacked jurisdiction because the children were domiciled in Lubbock, Texas, and were removed to Louisiana only by an order of the trial court. Defendant’s other three assignments relate to the sufficiency of the evidence. We affirm.

A city court has original juvenile jurisdiction within its territorial area concurrent with that of a.district court. CJP Art. 14 D. This jurisdiction extends to proceedings under LRS 14:403, to proceedings in which a child is alleged to be in need of care (CJP Art. 15), and to proceedings involving adults under LRS 14:403 to protect children from actual or threatened mental or physical abuse (CJP Art. 16, 18).

CJP Art. 18 states that these proceedings may be commenced in the parish where the child is domiciled, in the parish in which the child was present when the conditions or act complained of occurred, or in the parish where the child may be found.

Witnesses testified that defendant and his children were in Monroe in November 1979 and again in late May and until about June 10, 1982. On the report of a relative on June 8, 1982, regarding sexual abuse of the children by the father and the mother, DHHR investigated and caused proceedings under LRS 14:403 to be instituted on June 11, 1982. The State alleged and showed that defendant and the children were residing (at least temporarily) in Monroe at the time the report was made. The fact that they may have been then legally domiciled out of the state does not defeat the juvenile court’s jurisdiction. The father and the children were present in Monroe when the conditions complained of existed. CJP Art. 18.

The conditions complained of are those that indicate the child is in need of care. Under CJP Art. 13(14), that term means a child:

(a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury or sexual abuse upon the child which seriously endangers the physical,1 mental or emotional health of the child;
(b) Whose physical, mental or emotional condition is substantially threatened or impaired as a result of the refusal or neglect of his parent to supply the child with necessary food, clothing, shelter, medical care, counseling or education, or as a result of the parent’s neglect or imposition of cruel punishment; or
(c) Who is without necessary food, clothing, shelter, medical care, education, or supervision because of abandonment by, or the disappearance or prolonged absence of, his parent, or because of any other reason.

At this juncture we note that the June 8, 1982, complaint to DHHR was directed at both parents and included an illegitimate infant grandchild of defendant, who was born to defendant’s 14-year-old daughter, allegedly from a sexual union with defendant. We also note that the record shows that defendant and his children removed themselves from Monroe about June 10, 1982, when he learned that a relative had complained to DHHR.

Under these circumstances, the trial court had jurisdiction notwithstanding its later order requiring the children’s return from Texas to Louisiana. State in the Interest of King, 310 So.2d 614 (La.1975) is inappo-site. There it was emphasized that the father brought his children from New York into Louisiana, attempting to wrest [legal] custody from his wife on the grounds that the conditions under which the children had been living in New York were unfit. Here the defendant’s children were subjected to an injurious environment in Louisiana during and before 1982, according to this record.

The trial court had jurisdiction.

The remaining three assignments relate to the alleged absence of evidence to establish either that defendant’s two sons, ages 13 and 8, had been sexually or physically abused or neglected or that no misconduct or abusive incidents took place in Winnsboro, Louisiana, between defendant and his 14-year-old daughter.

Even should we assume these contentions correct, that assumption would not affect the great preponderance of the evidence showing that other abusive conditions existed, whether inflicted by either or both the mother and the father towards one or more of the children, which warrant the award of custody of the children in the family to DHHR. These children and their parents lived a nomadic existence and apparently were not permanently residing anywhere more than a few weeks or months at a time. The trial court did not abuse its responsibility of assessing and weighing the evidence. Overt sexual promiscuity of one or more children or parents affects all of the children in the family.

At appellant’s cost, judgment is AFFIRMED.


author: FRED W. JONES, Jr., Judge.

text:
    Jerry L. TURNER et al., Plaintiffs-Appellants-Appellees, v. CITY OF SHREVEPORT et al., Defendants-Appellees.
    No. 15561-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Rehearing Denied Sept. 29, 1983.

      Avant & Falcon by John L. Avant, Baton Rouge, for plaintiffs-appellants-appellees.
    Charles B. Peatross, City Atty. by L. Edwin Greer, George W. Lang, II, Shreveport, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The central issue presented on this appeal requires an interpretation of that clause of La.R.S. 33:1992 which directs municipalities above a specified population level to grant fire department employees qualified thereunder annual longevity pay increases.

This suit was filed on August 15,1979 by 373 employees of the Shreveport Fire Department, individually and as a class action, seeking to recover longevity pay allegedly due under the above cited statutory provision. Made defendants were the City of Shreveport (“City”), its mayor and councilmen.

Defendants interposed a variety of defenses, including pleas of prescription and estoppel and an exception of no cause of action based upon the existence of a home rule charter. Further, defendants asserted that the City had in fact complied with the longevity pay requirements of Section 1992.

Evidence presented at the trial revealed that beginning in 1962 the following raises were given to members of the Shreveport Fire Department:

1962 — 2%
1963 —' 2%
1964 — 2%
1965 — 2%
1966 — 2%
1967 — 2%
1968 — 2%
1969 — $20 per month
1970 — 18.7% — 27.7%
1971 — $20 per month
1972 — $20 per month
1973 — 9% — 13%
1974 — $50 per month
1975 — $20 per month
1976 — $30 per month
1977 — 4.4% $15 and $30 schedule
1978 — modification of schedule 5%
1979 — 5% new schedule
1980 — 8%
1981 — 4% and 2%

In comprehensive written reasons for judgment, the district judge overruled defendants’ exception of no cause of action, finding Section 1992 applicable to the City despite its operation under a home rule charter; gave the City credit against the mandated longevity pay increases for any annual increases in the firefighters’ salaries, regardless of how designated; ruled that “base pay” for the purpose of calculating longevity increases means actual pay and includes accrued increases; and sustained defendants’ plea of one year prescription, barring all claims accruing prior to August 15, 1978. After the City submitted an accounting as required by the district court, a monetary judgment was rendered in favor of plaintiffs.

Plaintiffs appealed the judgment, specifying as error the lower court’s “crediting against the obligation of the City with respect to longevity pay all pay increases granted by the City irrespective of the nature thereof.”

Defendants answered the appeal, complaining primarily that the district judge incorrectly calculated longevity increases upon an “increasing” rather than a “static” base and, further, should not have included longevity accruing prior to August 15, 1978 to compute back pay due after that date— since this would operate as only a partial sustaining of the plea of one year prescription. Defendants also reurged their exception of no cause of action [based on the home rule charter] and the defenses of es-toppel, ratification and laches.

We held in the recent case of Ruby v. City of Shreveport, 427 So.2d 1267 (La. App. 2d Cir.1983) that the Louisiana Constitution of 1974 reserved to the State the plenary power to legislate minimum wages for municipal police and firemen, with no exception made for cities governed by home rule charters. Therefore, the district judge correctly overruled defendants’ exception of no cause of action. Further discussion thereof is unnecessary.

We proceed to what the parties concede is the primary issue on appeal — to comply with the longevity pay increase mandated under Section 1992 must the municipality expressly specify and describe as longevity an exact 2% annual salary raise given on the employee’s anniversary date?

Before examining the particular statutory provisions in question, it is appropriate to briefly review jurisprudentially established guidelines for statutory construction.

The paramount consideration in a case involving statutory interpretation is ascertainment of the legislative intent and reason or reasons which prompted the legislature to enact the law. Courts construe a statute to accomplish the purpose for which it was enacted and to give effect to the legislative will therein expressed. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49,176 So.2d 425 (1965); Board of Trustees of Finance Authority v. All Taxpayers, 336 So.2d 306 (La.App. 1st Cir. 1976).

The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a statutory provision, therefore, is to be determined by a consideration of the statute in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in enacting it. St. Martin Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671 (1947); Legras v. Conner, 212 So.2d 177 (La.App.3rd Cir.1968).

Although they constitute no part of the statute under consideration, the title and preamble to an act and the organization, classification and headings of Revised Statutes may provide some aid in construction of a statutory provision, the precise import of which is unclear. Montelepre v. Edwards, 359 So.2d 1311 (La.App. 4th Cir. 1978); Legros v. Conner, supra.

Turning to the statutory provision in question, we note that Chapter 4 of Title 33 of our Revised Statutes deals with Fire and Police Departments; Part II pertains exclusively to Fire Departments; Sub-part B of the latter bears the heading “Minimum Wages and Maximum Hours”; and Section 1992 has the heading “Minimum Salaries”.

The legislative history of Section 1992 is enlightening. Act 59 of 1942 [the original enactment] explained in the preamble that it was “to establish and provide for minimum wages for the full time paid members of fire departments in certain incorporated cities, towns and villages in the State of Louisiana ...” The body of the legislation provided that, in certain instances, upon the completion of the first year’s active service each fireman would be entitled to a $10 per month salary increase.

Act 196 of 1948 amended the original act to provide a new schedule of minimum salaries.

Act 219 of 1956 amended Section 1992 by establishing a new schedule of minimum salaries for firemen in municipalities having a population of 13,000 or more and added the following clause:

From and after the first day of August, A.D., 1957, each member of the Fire Department who has had three years continuous service shall receive an increase in salary of two percent and shall, thereafter, receive an increase in salary of two percent for each years additional service up to and including twenty years.

A note in the margin opposite this clause described the provision as “additional salary.”

Act 132 of 1962 changed the “additional salary” clause of Section 1992 to show the beginning date as the first day of August, 1962 rather than 1957.

As set forth in the preamble, Act 55 of 1968, Extra Session, amended Section 1992 “to provide with respect to minimum wages and longevity pay to firemen.” The “additional salary” clause was unchanged except for the addition of the following sentence:

“Both the base pay and accrued longevity shall be used in computing such longevity pay.”

Section 1992 has remained unchanged since the 1968 amendment.

Plaintiffs-appellants argue that the effect of the 1968 amendment was to establish in Section 1992, not only a minimum salary schedule for firefighters, but in addition thereto a required longevity pay increase. They further assert that to properly comply with the mandate of this statutory provision, a municipality must expressly designate the annual 2% salary increase as a longevity pay increase. Consistent with this reasoning, they concede that the City complied with the cited statute with regard to the pay of its firefighters from 1962 until 1969. Relied upon as authority for this position is the case of New Orleans Firefighters Association, Local 632 v. City of New Orleans, 286 So.2d 674 (La.App. 4th Cir.1973).

We do not construe the holding of the latter case to be supportive of plaintiffs-appellants’ argument. There, as the court succinctly stated, the sole question presented concerned the proper method for computing longevity pay for the firefighters, i.e., is longevity pay to be cumulated? An affirmative answer was given, as clearly required by the 1968 amendment to Section 1992. Defendants here do not dispute this.

After giving due consideration to the legislative history of Section 1992, its place in the organizational structure of our Revised Statutes and the heading thereof, we conclude that the purpose of the entire section [including the “additional salary” or longevity pay clause] is to assure that firefighters in certain municipalities received stipulated minimum salaries. The 1956 amendment directed that there be added to the minimum salary schedule designated annual increases after the first three years of continuous service. Although not so described expressly, the latter were obviously longevity pay increases. This became, in effect, a new, implemented minimum salary schedule for members of fire departments.

Prior to 1968 the firefighters’ longevity pay increase was computed on base pay alone. The sole apparent purpose of the 1968 amendment was to mandate the cumulation of longevity pay of prior years in calculating additional longevity pay increases. There is no reason to believe that the legislature intended, by simply adding one sentence to the “additional salary” clause of Section 1992 and by expressly describing the mandated minimum 2% salary increase as “longevity pay” to so drastically alter the statutory scheme as to require an annual longevity pay increase over and above any other pay increase.

In summary, we conclude that Section 1992 in its entirety continues to require certain municipalities to pay firefighters stipulated minimum salaries, which must include longevity increases after three years continuous service. However, our discernment of legislative intent in conjunction with a commonsense approach to the issue dictate the conclusion that, if this mandated increase is paid, regardless of whether described expressly as a “longevity pay increase” or not, the municipality has complied with Section 1992. Consequently, we find that the district judge correctly disposed of this pivotal issue.

We understand from defendants’ brief that the pleas of estoppel, ratification and laches are re-urged on appeal primarily as alternative defenses in the event we ruled contrary to the lower court on the question of the City’s entitlement to credit against longevity for all pay raises regardless as how characterized. In view of our holding on that point, the necessity of discussing these defenses is pretermitted.

Defendants’ complaint that the district judge erred in considering what firemen actually receive as their “base pay” for the purpose of calculating longevity pay increases is without merit. The lower court ruling is clearly supported by the rationale of Williams v. City of West Monroe, 403 So.2d 842 (La.App.2d Cir.1981) in which we held that base pay for firemen included state supplemental pay.

Finally, contrary to defendants’ contention, the district judge correctly included longevity accruing prior to August 15, 1978 in computing sums becoming due as back wages subsequent to that date, even though one year prescriptive period barred recovery of back salary due prior to August 15,1978. As plaintiffs-appellants point out, to follow defendants' reasoning on this point would completely frustrate the legislature’s intent to reward firefighters monetarily for their years of service.

For these reasons, we affirm the district court judgment, at appellants’ cost.


text:
    Norbert W. JOHNSON, Plaintiff-Appellant, v. PEERLESS SUPPLY COMPANY, INC., et al., Defendants-Appellees.
    No. 15562-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay Cowden Medlin, Shreveport, for inter-venor-appellant, Hanover Ins. Co.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellee, Patent Scaffolding Company, a Div. of Harsco Corp.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff sued the vendor and manufacturer of a stepladder for injuries sustained when the allegedly defective ladder collapsed, causing plaintiff to fall to the ground and hurt his back. Plaintiff’s worker’s compensation carrier intervened to recover benefits it had paid plaintiff. From a judgment in favor of the defendant manufacturer, both plaintiff and the intervenor appealed, contending in essence that the trial judge was clearly wrong in his fact-finding concerning the cause of plaintiff’s fall.

For the reasons hereinafter explained, we find no manifest error in the trial court’s factual determinations and affirm.

Plaintiff, Norbert Johnson, purchased a six foot laminated wood stepladder from Peerless Supply Company, Inc. in February 1977. On February 28, 1979, Johnson [a 55 year old, 190 pound insurance agent] was using the described ladder in the backyard of his residence when the alleged accident and resulting injuries occurred. In this suit, filed on June 26, 1979, Johnson asserted that his fall was due to the collapse of the ladder because of a manufacturing defect. Evidence adduced at the trial on December 10,1982 consisted primarily of deposition testimony.

According to the plaintiff, just prior to the accident he had placed the four legs of the ladder in a free-standing position at-a relatively level spot on the hard dirt surface of his backyard, preparatory to climbing the ladder to take pictures with his small camera. With the camera in his pocket, plaintiff ascended the ladder and had placed both feet on the fourth step when the left front leg collapsed, causing him to fall to the ground in that direction.

Plaintiff's wife testified that she was standing at a window in their residence, some 100 feet away, watching her husband on the ladder, and saw him fall. This witness conceded, however, that it happened so fast she really could not relate exactly what had occurred with reference to the ladder.

The defendant manufacturer presented the deposition testimony of two expert witnesses in an effort to negate plaintiffs as-, sertion that a defect in the ladder caused its collapse and plaintiffs fall.

John Dailey, plant manager for defendant’s manufacturing division and an expert in wood products engineering, visually inspected the damaged ladder after it was shipped to one of defendant’s New York facilities. Dailey observed that, other than at the point of the break in the left side rail, the ladder appeared to be in good condition. After inspecting the splintery appearance of the break, he reached the tentative conclusion that this represented a classic compression-tension type failure, with the tension failure on the outside of the rail and the compression failure on the inside. This evidence led Dailey to believe that the ladder was tipped over when the failure occurred.

Dailey’s preliminary finding was, according to the witness, verified after he conducted tests on other ladders to produce a similar type failure. He concluded that there was “no way for this type of break to occur with all four legs on the ground.” It was his final opinion that the failure of the ladder occurred when the left rail was past the vertical point to the ground and the two opposite rails on the right were several inches off the ground, i.e., plaintiff’s fall was caused, not by a prior collapse of the ladder, but by plaintiff’s tipping the ladder over and then, perhaps, falling on it.

Also testifying as an expert witness on behalf of defendant manufacturer was Dr. Warren Thompson, Director of the Forest Products Laboratory at Mississippi State University and an expert in wood science.

Since the ladder in question had been lost in a fire which totally destroyed defendant’s building in New York where the ladder was being held, Dr. Thompson based his testimony on photographs of the damaged ladder and the deposition testimony of plaintiff.

Thompson’s testimony was substantially the same as that of the other expert. He explained that the tension break on the outside of the' left rail and the compression failure on the inside of that rail indicated that the ladder was leaning considerably to the left at the time of the break. Thompson stated that if all the ladder legs were on the ground and a leg failed, the compression failure would have been on the outside of the rail and the tension break on the inside — or just the opposite of what occurred in this case. This witness also conducted stress tests on similar ladders, applying pressure with a hydraulic jack, and reached the same final conclusion as Dailey with reference to plaintiff tipping over the ladder before the break. Further, Thompson believed that plaintiff struck the ladder in the process of falling.

In written reasons for judgment, the trial court carefully reviewed the evidence and made the following pertinent findings of fact:

“From the eyewitness testimony, it is not clear exactly why the fall began or what caused the fall. However, it is clear that the fall did not begin because of a defect in the ladder.
“The uncontroverted scientific and expert evidence clearly and convincingly shows that the ladder in question broke after it began to fall.... Mr. Johnson
must have accidentally begun his fall and as he did so the left leg of the ladder broke.”

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part sustains an injury caused by a defect in the design, composition, or manufacture of the article. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971).

In this case, after weighing the evidence, the trial judge made the factual determination that the ladder in question was not defective. That we may not disturb such a finding in the absence of manifest error is now so well established that citation of authority is unnecessary. Our review of the record fails to reveal that the court was clearly wrong in its finding of fact. Consequently, we affirm the district court judgment, at appellants’ cost.

       After this suit was filed, the defendant-vendor of the ladder, Peerless Supply Co., Inc., was adjudicated a bankrupt and all proceedings as to it were stayed.


author: SEXTON, Judge.

text:
    FIRST STATE BANK, Plaintiff-Appellee, v. Charles Monroe WILSON, et ai, Defendants-Appellants, Louisiana Bank & Trust Company, Intervenor-Appellant.
    No. 15591-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Evans, Feist, Auer & Keene by Frances 0. Allen, Shreveport, for intervenor-appel-lant.
    Tyler & Johnson by D.G. Tyler, Shreveport, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Louisiana Bank and Trust Company, in-tervenor herein, appeals the judgment of the District Court rejecting its demands to have its mortgage on a certain mobile home recognized as superior to that of a seizing judgment creditor. We reverse.

These proceedings began with the suit by the First State Bank, a Louisiana corporation, on May 15, 1981 against Charles M. Wilson, Charles Wilson, Sr. and Lloyd D. Wilson. A default judgment was rendered thereafter against Charles M. and Charles Wilson, Sr. only, on July 22, 1981 in the amount of $8,413.88, together with interest, attorney’s fees and costs. A fifa was issued on October 7, 1981 and was executed on October 20, resulting in the seizure of a mobile home belonging to Charles M. Wilson and his wife. The sale of this mobile home was set for, and occurred on, November 18, 1981.

Prior to the sale, on November 4, 1981, Louisiana Bank and Trust Company filed a petition of intervention alleging that Louisiana Bank was the holder of a bearer note signed by Charles M. Wilson and his wife in the amount of $15,000 and asserting the existence of a valid chattel mortgage on the mobile home previously seized by First State Bank. The petition prayed to have the bank’s chattel mortgage “recognized as prior in rank to [First State Bank’s] mortgage” and also for judgment in favor of Louisiana Bank decreeing that the proceeds of the judicial sale of the mobile home be paid to the intervenor bank.

The intervention was tried on February 23, 1982, and submitted on that date. No preliminary default or confirmation thereof had been sought against Charles M. Wilson or his wife. On May 7, 1982, the demands of the intervenor were rejected and judgment was signed, accordingly, on August 2, 1982. This appeal by Louisiana Bank ensued.

The record does not contain reasons for judgment, either oral or written, but the trial judge, in taking the case under advisement, expressed concern that neither a preliminary default nor motion for confirmation of default had been sought against the Wilsons prior to the trial of the intervention.

The record shows that the collateral note in the amount of $15,000 to Louisiana Bank and the accompanying mortgage, together with an accompanying pledge of the collateral note, were all executed on July 17, 1980. Three hand notes were subsequently secured by this pledge. They were introduced as LBT Exhibits 1 through 3, and are in the amounts of $4,979.10, $3,867.36, and $1,530.66, respectively. LBT Exhibits 1 and 2 are dated July 17,1980 and LBT Exhibit 3 is dated November 16,1981. All three hand notes, as well as the collateral note and mortgage, called for interest at eight percent and attorney’s fees in the amount of twenty-five percent. Additionally, each of the three hand notes contains language identifying it with a separate agreement of pledge.

Initially, we note that the fact that the hand note identified as LBT Exhibit 3 is dated November 16,1981, subsequent to the issuance of the fifa, is of no moment. The debt which that note evidences ranks from the date of the initial issuance of the collateral note to Louisiana Bank rather than the date of the hand note. LSA-C.C. Art. 3158. New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252, (La.App. 4th Cir.1972), writs den. 263 So.2d 47 (La.1972). See also, Nathan and Marshall, Collateral Mortgage, 33 La.L.Rev. 497 (1973).

Mr. Patrick W. Shaw, vice-president and branch manager of the South Shreveport Branch of Louisiana Bank, testified that Mr. Wilson was his loan customer and that all of the documents at issue were executed before him. He further testified that, as of the date of the trial, the outstanding indebtedness on the three hand notes was $6,202.21, together with eight percent interest and twenty-five percent attorney’s fees. His testimony was uncontradicted, and Mr. Wilson himself acknowledged his indebtedness to Louisiana Bank at the trial. His testimony was in no way contradictory to that of Mr. Shaw.

Thus, the bank proved that it had a valid collateral note and mortgage, with the note being properly pledged to secure any indebtedness of Charles Wilson up to $15,-000.00. The bank also proved that it was the holder of hand notes secured by the pledge with an outstanding indebtedness of $6,202.21, together with interest and attorney’s fees.

Furthermore, the record shows that the mortgage was properly recorded in accordance with LSA-R.S. 32:710 so as to affect third persons. Thus, the chattel mortgage of Louisiana Bank is superior in rank to the subsequent fifa obtained by First Bank to the extent of Mr. Wilson’s indebtedness to Louisiana Bank. LSA-R.S. 9:5354; LSA-C.C.P. 2292; J.P. Messina Contractors v. Cortez Const, 372 So.2d 799 (La.App. 3d Cir.1979).

The fact that there was no default nor any motion to confirm the default does not affect the validity of appellant’s position here. As we have noted, Louisiana Bank’s privilege is superior to that of First State Bank. Louisiana Bank has the right to intervene, but is not obligated to do so as “a third person asserting ownership of, or a mortgage privilege on, property seized may assert his claim by intervention.” (emphasis ours) LSA-C.C.P. Art. 1092. Louisiana Bank’s privilege follows the property into the hands of third persons. LSA-R.S. 9:5354. Furthermore, the sheriff may only sell this property subject to Louisiana Bank’s superior claim. LSA-C.C.P. Art. 2335.

Therefore, it is clear that appellant is entitled to the proceeds of the sale of this chattel subject to the extent of the debt. The record reflects that the proceeds of the sale held for the court after deduction of the costs thereof, were $7,592.84. When interest and attorney’s fees are applied to the $6,202.21 which was owed on the three hand notes at the time of the trial of the intervention, it is apparent that the debt to Louisiana Bank exceeds the proceeds from the sale. Therefore, Louisiana Bank is entitled to judgment as prayed for in the intervention.

DECREE

There will therefore be judgment herein in favor of intervenor, Louisiana Bank and Trust Company, and against First State Bank, recognizing intervenor’s chattel mortgage on that 1976 50' X 12' Tri-Star mobile home, serial no. 0177, located at Lot 5418, Lot 12, Shreveport, Louisiana, to be superior in rank to that privilege asserted by First. State Bank; and there will be further judgment herein ordering Don Hathaway, Sheriff of Caddo Parish, to pay the proceeds of the Sheriff’s sale of November 18, 1981, of the aforesaid mobile home to intervenor, Louisiana Bank and Trust Company, in partial satisfaction of the indebtedness of Charles M. and Wanda M. Wilson as evidenced by the three hand notes herein, LBT Exhibits 1 through 3.

All costs of these proceedings are assessed against First State Bank.

REVERSED AND RENDERED.