author: DIXON, Chief Justice. DENNIS, J.,

text:
    William G. CORBELLO, et al. v. R.T. SUTTON, Commissioner of Conservation, et al.
    No. 83-C-2603.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      Thomas M. Bergstedt, J. Michael Veron, Scofield, Bergstedt, Gerard, Mount & Ver-on, Lake Charles, for plaintiffs-applicants.
    Veil David Devillier, Eunice, John M. McCollam, Gordon, Arata, McCollam & Stuart, New Orleans, for defendants-respondents.
   DIXON, Chief Justice.

The present suit seeks judicial review of an order by the Commissioner of Conservation, dated February 11, 1981, issued pursuant to the Conservation Act, R.S. 30:l-:63, which adversely affects petitioner. The petition for review, filed in the district court pursuant to R.S. 30:12, was filed on August 28, 1981. Both the trial court and the court of appeal dismissed the petition on the basis of the equitable doctrine of laches, finding that the seven month delay between the issuance of the order and the filing of the petition was unreasonable. We grant this writ only to decide the issue of timeliness in the filing of the petition. For the reasons set forth below, we hold that the doctrine of laches has no place in the law of this state, but, on other grounds, affirm the dismissal of the petition.

The delay provisions of the Administrative Procedure Act (APA), R.S. 49:950-:970 do not necessarily apply to actions for judicial review brought pursuant to the Conservation Act. The APA provides, in the absence of a contrary provision, that a petition for judicial review of administrative orders must be filed within thirty days of the issuance of the order. APA § 964(B). Thus, in no event, whenever an administrative order is issued, is there an absence of statutory provision for the time delays within which the petition must be filed. The equitable doctrine of laches, therefore, has no application in such cases.

“There is no prescription other than that established by legislation.” C.C. 3457. “(b) Under the Louisiana legal system, there is no room for the common law doctrine of laches. See System Federation No. 59 of Railway Employees’ Department of American Federation of Labor v. Louisiana & A. Ry. Co., 57 F.Supp. 151 (W.D.C.La.1944) and Landry v. Mutual Life Ins. Co. of New York, 54 F.Supp. 356 (W.D.C.La.1944).” Official Revision Comment (b) to C.C. 3457.

R.S. 30:12 provides for the right of a different type of judicial review, with different standards of proof, and different remedies, than are provided by the APA. See Jordan v. Sutton, 401 So.2d 389, 392 (La.App.1981) (on original hearing). Furthermore, it was highly unlikely that the legislature intended an unlimited time within which to seek judicial review. This is borne out by the provision of R.S. 30:15, the procedural part of the act, which states that review may be sought “in accordance with the general laws relating to appeals,” with the exception that the appeal is to be brought in the district court, R.S. 30:12, instead of the court of appeal.

When the APA was adopted in 1966, more than twenty years after the enactment of the Conservation Act, it was not intended to supersede the specific provisions of other administrative acts, or to supersede the rights and remedies created under those acts. Instead, it was intended to create procedures in those instances where none existed. In matters dealing with the Conservation Act, procedures already existed, and to the extent that there are any inconsistencies, the specific Conservation Act rules apply. Thus, the special right of review and injunction, created by the Conservation Act, controls over the provisions for review provided in the APA. R.S. 30:12 makes this clear, by stating that the remedies provided by that act are the exclusive remedies of adversely affected parties.

Therefore, it can be concluded that Section 12 provides the exclusive right of judicial intervention into the administra-five orders issued by the Commissioner of Conservation, pursuant to the Conservation Act, and that Section 15 provides the procedures for review: an appellant must follow the ordinary rules of appeal, including the time limitations for the filing of the appeal. Under the provisions of the Code of Civil Procedure in effect at the time this petition was filed, the maximum time in which an appeal could be filed was sixty days. Since petitioner failed to file his application for review within sixty days from the issuance of the commissioner’s order, his suit for review and injunction was filed too late.

Accordingly, the appeal was properly dismissed, and the dismissal is, therefore, affirmed.

DENNIS, J.,

would grant the writ, but he would hear arguments from the parties before deciding this question.

      . At the time this suit was filed, R.S. 30:12 provided:
      "An interested person adversely affected by any law of this state with respect to conservation of oil or gas, or both, or by a provision of this Chapter, or by a rule, regulation, or order made by the commissioner hereunder, or by an act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for an injunction against the commissioner as defendant. Suit shall be instituted in the district court of the parish in which the principal office of the commissioner is located and shall be tried summarily.... The right of review accorded by this Section shall be inclusive of all other remedies, but the right of appeal shall lie as hereinafter set forth in this Chapter."

      . The procedure for effecting an appeal under the Conservation Act is found in R.S. 30:15, which provides:
      “In proceedings brought under authority of, or for the purpose of contesting the validity of, a provision of this Chapter, or of an oil or gas conservation law of this state, or of a rule, regulation, or order issued thereunder, appeals may be taken in accordance with the general laws relating to appeals. In appeals from judgments or decrees in suits to contest the validity of a provision of this Chapter, or a rule or regulation of the commissioner hereunder, the appeals when docketed in the proper appellate court shall be placed on the preference docket of the court and may be advanced as the court directs.”

      . At the time of the enactment of R.S. 30:15, the time delay for filing a suspensive appeal was ten days, excluding Sundays. C.P. 575.

      . C.C.P. 2087. The court expresses no opinion as to whether the petition was for a suspensive or devolutive appeal. We find only that the maximum time allowable for an appeal, giving the benefit of doubt to petitioner, is sixty days.

      .In light of other administrative time limitations, we find no merit to any objection that the thirty to sixty days limit is unreasonable. See, e.g., La.Const. art. 10, § 12 (thirty day limit to appeal removal and disciplinary decisions by the Civil Service Commission).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Mark LOUPE.
    No. 83-KK-2405.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Mark Loupe, applying for writs of review, from the First Circuit Court of Appeal, No. 83-KW-0878, Parish of Terre-bonne, to The 32nd Judicial District Court, No. 129837.

Case below: 442 So.2d 754.

Denied.

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


text:
    STATE of Louisiana v. Troy J. MILLER.
    No. 84-KD-0372.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Troy J. Miller, applying for writ of certiorari and/or review to the Criminal District Court, Parish of Orleans, No. 298-017.

Granted and transferred to the Court of Appeal, Fourth Circuit, for its consideration and action.


text:
    STATE of Louisiana v. David COLE.
    No. 84-KK-0407.
    Supreme Court of Louisiana.
    Feb. 29, 1984.
   In re David Cole, applying for writs of certiorari, prohibition, mandamus and for a stay order, to the Parish of Caddo, First Judicial District Court, No. 123619B; to the Second Circuit Court of Appeal, No. 16345-KW.

Denied. Moot. This application was received in the mail in the office of the Clerk of this Court at 2:30 pm this date. Counsel in this extradition matter has advised by telephone that relator was removed from this state by Texas authorities at about 10 AM this morning.


text:
    STATE of Louisiana v. Wandall W. COODY.
    No. 84-KD-0413.
    Supreme Court of Louisiana.
    March 2, 1984.
   In re Wandall W. Coody, applying for supervisory and remedial writs, Fourth Judicial District Court, Parish of Morehouse, Nos. 82-2035-A; 82-2036-A; 82-2037-A; 82-2038-A and 82-2039-A.

Denied.


text:
    STATE of Louisiana v. Harvey HIGH.
    No. 84-KD-0415.
    Supreme Court of Louisiana.
    March 2, 1984.
   In re Harvey High, applying for writ of certiorari and stay order to the Fourth Judicial District Court, Parish of More-house Nos. 83-2874-A and 83-2963-A.

Denied.


text:
    STATE of Louisiana, ex rel. Nelson EARIN v. Hon. Rudolph F. BECKER, III, Judge Criminal District Court, Section “E” & Clerk of Court Criminal District Court, Parish of Orleans.
    No. 83-KH-1377.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Nelson Earin, applying for writ of mandamus, from Criminal District Court, Parish of Orleans, No. 83-KH-1377.

Granted. Boykin transcript ordered furnished.


text:
    STATE of Louisiana ex rel., Dexter SIMON v. Hon. Walter C. PETERS, Judge 31st Judicial District Court, Parish of Jefferson Davis.
    No. 83-KH-2099.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Dexter Simon, applying for writ of mandamus, Parish of Jefferson Davis, 31st Judicial District Court, No. CR-3133-82.

Granted. Trial court is ordered to act on defendant’s motion within 30 days.


text:
    STATE of Louisiana v. Reginald THOMAS.
    No. 83-KH-2238.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Reginald Thomas, applying for writ of certiorari and mandamus, Parish of Orleans, No. 282-552.

Granted. Boykin transcripts ordered in Nos. 236-604B, 252-256 & 240-7501.


text:
    STATE of Louisiana, ex rel., Chester BENNETT v. Hon. Judge PETERS, 31st Judicial District Court, Parish of Jefferson Davis.
    No. 83-KH-2430.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Chester Bennett, applying for writ of mandamus or habeas corpus, Parish of Jefferson Davis, No. CR-806-78.

Granted. Trial judge ordered to act on relator’s post conviction motion by March 28, 1984.


text:
    Lois LACEY v. LOUISIANA COCA COLA BOTTLING, COMPANY, LTD.
    No. 84-C-0183.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Lois Lacey, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-0527; Parish of Orleans, Civil District Court, No. 80-19620.

Case below: 444 So.2d 769.

Granted.


text:
    AUDUBON INSURANCE COMPANY v. Edward FARR and Allstate Insurance Company.
    No. 84-C-0247.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Allstate Insurance Company, applying for writ of certiorari, or review to the Fourth Circuit Court of Appeal, No. CA-0895, from Civil District Court, Parish of Orleans, No. 79-8086.

Case below: 443 So.2d 733.

Granted.


text:
    Joe FREEMAN, et al. v. HAROLD DICKEY TRANSPORT COMPANY.
    No. 84-CC-0263.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Jack O. Brittain, Sr., Esq. and Joe Payne Williams, Sr., Esq., applying for supervisory writs of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-1136; Tenth Judicial District Court, Parish of Natchitoches, No. 50847.

Granted. The judgment of the court of appeal is set aside, and the judgment of the district court is reinstated.


text:
    STATE of Louisiana v. Winfredo CABELLO, et al.
    No. 84-KK-0290.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Winfredo Cabello, et al., applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. K-1791; 34th Judicial District Court, Parish of St. Bernard, No. 81-039, Division A.

Granted. Remanded to Court of Appeal for briefs, argument and opinion.


text:
    STATE of Louisiana v. Roland YOUNG.
    No. 84-KK-0371.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Roland Young, applying for supervisory writs, to the Fourth Circuit Court of Appeal, No. K 1757, from Criminal District Court, Parish of Orleans, No. 298-849.

Granted. Ruling of the Court of Appeal is reversed. The case is remanded to that court for briefing, argument and an opinion.


text:
    Joseph BAILEY v. CAJUN INSULATION, INC. & Cecil J. Blanche.
    No. 84-CD-0273.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Cajun Insulation, Inc., applying for supervisory and remedial writ and writ of mandamus to the 29th Judicial District Court, Parish of St. John, No. 26635.

Granted. The matter is to be docketed as an appeal.


text:
    STATE of Louisiana v. Leonard DARSON.
    No. 84-KH-0412.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Leonard Darson, applying for remedial writs, to the Thirty-Eighth Judicial District Court, Parish of Cameron.

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


text:
    STATE of Louisiana v. Gerald JOHNSON.
    No. 84-K-2656.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Gerald Johnson, applying for reconsideration of writ denied February 3, 1984, 444 So.2d 1240, to the Third Circuit Court of Appeal, No. CR-83-175, from the Twelfth Judicial District Court, Parish of Avoyelles, No. 49913.

Case below: 440 So.2d 197.

Denied.


text:
    Joseph N. LANDRY, Sr. v. BILL GARRETT CHEVROLET, INC., General Motors Corporation, and Royal Globe Insurance Company.
    No. 84-C-0035.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Joseph N. Landry, Sr., applying for reconsideration on a denied writ of February 10, 1984, 445 So.2d 441, to the Fourth Circuit Court of Appeal, No. 13217; Civil District Court, Parish of Orleans, No. 77-11213.

Case below: 443 So.2d 1139.

Denied. Judgment is final.


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION.
    No. 84-OB-0276.
    Supreme Court of Louisiana.
    March 9, 1984.
    Reconsideration Denied April 13, 1984.
   In re Alex Chalmers Hope, Jr., applying for admission to the Louisiana State Bar.

Denied.


text:
    STATE of Louisiana ex rel., Howard THIBODEAUX v. Ross MAGGIO, Warden.
    No. 83-KH-1178.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Howard Thibodeaux, applying for writs of certiorari, habeas corpus, and mandamus, Parish of West Feliciana, No. 32958.

Denied.


text:
    STATE of Louisiana v. Cedric ROBINSON.
    No. 83-KH-1179.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Cedric Robinson, applying for remedial writs, Criminal District Court, Parish of Orleans, No. 277-476.

Denied. Relator’s several assignments of error either have no merit or have not first been presented to the district court.


text:
    STATE of Louisiana ex rel., Michael LANDRY v. Wayne McELVEEN, Sheriff, Calcasieu Parish.
    No. 83-KH-1203.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Michael Landry, applying for writ of habeas corpus, Parish of Calcasieu, No. 7594-77.

Denied.


text:
    STATE of Louisiana, ex rel. Joe Louis BARNES v. Richard P. BOYD, Jr., Honorable Judge, 7th Judicial District Court, Parish of Catahoula.
    No. 83-KH-1225.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Joe Louis Barnes, applying for writ of certiorari, prohibition, mandamus and habeas corpus, 7th Judicial District Court, No. 79-1353, Catahoula Parish.

Denied.


text:
    STATE of Louisiana ex rel. James C. JONES v. Ross MAGGIO.
    No. 83-KH-1258.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re James C. Jones, applying for writ of certiorari from Criminal District Court, Parish of Orleans, No. 245-663.

Denied.


text:
    STATE of Louisiana, ex rel., Eric JONES a/k/a Earl Coleman v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1278.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Eric Jones a/k/a Earl Coleman, applying writ of certiorari, prohibition, mandamus, or habeas corpus, Parish of Orleans, No. 226-753.

Denied.


text:
    STATE of Louisiana, ex rel. Richard James BADEAUX v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1281.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Richard James Badeaux, applying for writ of certiorari, 16th Judicial District Court, Parish of Iberia, No. 52752.

Denied.


text:
    STATE of Louisiana, ex rel. Robert McCall THOMPSON v. Don HATHAWAY, Sheriff of Caddo Parish, Louisiana.
    No. 83-KH-1285.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Robert McCall Thompson, applying for remedial writs, Caddo Parish, First Judicial District Court, No. 123-859-HC.

Denied.


text:
    STATE of Louisiana, ex rel., Edward Troy RASH, Jr., v. Donald R. GUILLORY.
    No. 83-KH-1290.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Edward Troy Rash, Jr., applying for writs of certiorari, prohibition and mandamus, Parish of DeSoto, No. 44454.

Denied.


text:
    STATE of Louisiana, ex rel., Kenneth W. RIDEAUX v. STATE of Louisiana.
    No. 83-KH-1292.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Kenneth W. Rideaux, applying for writs of habeas corpus, certiorari and mandamus, Parish of Orleans, No. 282-856.

Denied.


text:
    STATE of Louisiana v. Billy J. TAYLOR.
    No. 83-KH-1363.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Billy J. Taylor, applying for remedial writ to the 22nd Judicial District Court, Parish of St. Tammany, No. 59215.

Denied.


text:
    STATE of Louisiana ex rel., Brent WASHINGTON v. Hon. Judge Frank SHEA, Orleans Parish, Criminal District Court Sec “G”.
    No. 83-KH-1740.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Brent Washington, applying for writ of mandamus, Parish of Orleans, No. 288-737.

Denied.


text:
    STATE of Louisiana, ex rel. Thomas PICKENS v. Warden Ross MAGGIO, Louisiana Parole Board and Hon. Leo Higginbotham.
    No. 83-KH-2096.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Thomas Pickens, applying for remedial writs, 19th Judicial District Court, Parish of E. Baton Rouge, No. 3-80-168.

Denied.


text:
    STATE of Louisiana ex rel. Sidney PUGH v. Charles C. FOTI, Jr. Sheriff.
    No. 83-KH-2440.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Sidney Pugh, applying for remedial writ to Criminal District Court, Parish of Orleans, No. 284-206.

Denied.


text:
    STATE of Louisiana, ex rel., Joseph ARABIE v. Hon. Presiding Judge NEWLIN and Hon. Karno, Criminal District Court, Parish of Jefferson.
    No. 83-KH-2533.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Joseph Arabie, applying for writ of review or prohibition, 24th Judicial District Court, Parish of Jefferson.

Denied. The district court has no record of relator’s having filed a Boykin motion. Relator may file his motion (or re-file it) in the district court.


text:
    STATE of Louisiana ex rel. Graydon Gilbert GWYN v. Mike CANNON, Clerk, 19th Judicial District Court, Parish of East Baton Rouge and Chief Justice, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 83-KH-2649.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Graydon Gilbert Gwyn, applying for writ of mandamus from the Nineteenth Judicial District Court, No. 1-84-539, Parish of East Baton Rouge.

Denied. Hearing has been fixed.


text:
    John G. THIBODEAUX v. DRESSER INDUSTRIES, INC.
    No. 84-C-0101.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re John G. Thibodeaux, applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-304; 27th Judicial District Court, Parish of St. Landry, No. 80659.

Case below: 442 So.2d 1294.

Denied.

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


text:
    STATE of Louisiana ex rel. Sherman OFFORD v. L.J. HYMEL, Judge of the 19th Judicial District Court, Section “V”, Parish of East Baton Rouge.
    No. 84-KH-0106.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Sherman Offord, applying for writ of mandamus from the Nineteenth Judicial District Court, Section “V”, No. 11-80-868, Parish of East Baton Rouge.

Denied. Moot.


text:
    STATE of Louisiana v. John SHIELDS.
    No. 84-K-0174.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re John Shields, applying for writ of certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-KA-0677; Parish of East Baton Rouge, 19th Judicial District Court, No. 1-81-4089, Section IY.

Case below: 444 So.2d 287.

Denied.


text:
    STATE of Louisiana v. Anthony RICHARDSON.
    No. 84-K-0175.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Anthony Richardson, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-KA-0556, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 5-81-863.

Case below: 444 So.2d 654.

Denied.


text:
    STATE of Louisiana v. Kelvin CHRISTENTARY and Walter Turner.
    No. 84-K-0176.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Kelvin Christentary and Walter Turner, applying for writ certiorari or review, to the First Circuit Court of Appeal No. 83-KA-0827, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 11-80-50.

Case below: 444 So.2d 345.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Robert L. THIBODEAUX v. Hon. Miriam G. WALTZER, Judge Section A, Parish of Orleans.
    No. 83-KH-0815.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Robert L. Thibodeaux, applying for reconsideration of writ denied January 27, 1984, 444 So.2d 623, from the Criminal District Court, Parish of Orleans, No. 260-072.

Writ granted. The case is remanded to the district court for an evidentiary hearing on petitioner’s contention that his sentence was amended to provide that it be served “without eligibility to earn good time” in violation of La.C.Cr.P. art 881, in that it was amended after the beginning of the execution of the sentence.


text:
    Dr. Robert J. CARTER v. FINANCIAL ADVISOR & CONSULTANT, INC., and Jeffrey C. Thomas.
    No. 84-C-0177.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Dr. Robert J. Carter, applying for writ of certiorari, or review, to the First Circuit Court of Appeal, No. 83 CA 0247; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 246259.

Case below: 444 So.2d 646.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Kenneth LeCOMPTE, John Lagrange, Pedro Rodrigues, and John M. Hirschler.
    No. 84-K-0180.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Kenneth LeCompte, John Lagrange, Pedro Rodrigues, and John M. Hir-schler, applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. KA-0663; Criminal District Court, Parish of Orleans, No. 276-454.

Case below: 441 So.2d 249.

Denied.

DIXON, C.J., would grant on the double jeopardy issue.


text:
    David A. TATE v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 84-C-0182.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re David A. Tate, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, No. 83 CA 0297; 21st Judicial District Court, Parish of Livingston, No. 29437.

Case below: 444 So.2d 219.

Denied.


text:
    TEXACO INC. v. TENNECO INC.
    No. 84-CC-0184.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Tenneco Inc., applying for writ of certiorari, prohibition and mandamus, from the Fifteenth Judicial District Court, No. 83-3211-A; Parish of Lafayette, Third Circuit Court of Appeal, No. 83-1117.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Mose ROBERTSON, Jr.
    No. 84-K-0186.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Mose Robertson, Jr., applying for writ of certiorari, prohibition and mandamus to the First Circuit Court of Appeal, No. 83-KA-0258; 32nd Judicial District Court, Parish of Terrebonne, No. 117983.

Case below: 441 So.2d 1281.

Denied.


text:
    STATE of Louisiana v. Ensley JOSEPH, III.
    No. 84-K-0187.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Ensley Joseph, III, applying for writs of certiorari, prohibition and mandamus, to the First Circuit Court of Appeal, No. 83-KA-0337, from the Thirty-Second Judicial District Court, Parish of Terre-bonne, No. 103376.

Case below: 441 So.2d 1290.

Denied.


text:
    Rev. John SCHAEFER, Helene Waterman, Paul A. Emmer, Dolcie S. Ehlinger, and Ladd P. Ehlinger v. Hon. David C. TREEN, Governor of the State of Louisiana, and Hon. E.L. Henry Commissioner of Administration for the State of Louisiana.
    No. 84-C-0188.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Rev. John Schaefer, Helene Waterman, Paul A. Emmer, Dolcie S. Ehl-inger and Ladd P. Ehlinger, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0259, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 261-084.

Case below: 444 So.2d 188.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Helen BECK.
    No. 84-K-0199.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Helen Beck, applying for writ of certiorari and/or review to the Second Circuit Court of Appeal, No. 15,707-KA; 4th Judicial District Court, Parish of More-house, No. 81-1443A.

Case below: 445 So.2d 470.

Denied.


text:
    STATE of Louisiana v. Aubrey HUDNALL.
    No. 84-KK-0200.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Aubrey Hudnall, applying for writ of certiorari to the Twenty-Eighth Judicial District Court, Parish of LaSalle, Nos. 28-122 and 28-123, from the Third Circuit Court of Appeal, No. K83-405.

Case below: 444 So.2d 644.

Denied.


text:
    Lawrence SIMS, Betty Sims and Hermanese Sims v. CRC HOLSTON, INC., Terminix Pest Control, Inc., Robert J. Fonseca, Herman J. Conner and the Home Indemnity Company.
    No. 84-C-0206.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Lawrence Sims, Betty Sims and Hermánese Sims, applying for writs of cer-tiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0187; 32nd Judicial District Court, Parish of Terre-bonne, No. 64691.

Case below: 442 So.2d 646.

Denied.

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


text:
    Doyle W. KNIGHT v. LUNEAU MOBILE HOME SALES, INC., et al.
    No. 84-CC-0208.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Marion Homes, a Division of Tid-well Industries, Inc., applying for writ of certiorari; 9th Judicial District Court Parish of Rapides, No. 126672; Court of Appeal, Third Circuit.

Denied.


text:
    STATE of Louisiana v. Michael MILSON.
    No. 84-KD-0209.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Michael Milson, applying for writs of certiorari, prohibition, mandamus and stay order, to the 15th Judicial District Court, Parish of Acadia, No. 32-619.

Denied.


text:
    Andrew J. FISK, et al. v. Andrew J. FISK, Jr., and Janey Safford Fisk.
    No. 84-C-0210.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Andrew J. Fisk, et al., applying for writ of certiorari, to the Court of Appeal, Third Circuit, No. 82-281; Parish of Rap-ides, 9th Judicial District Court, No. 121-916.

Case below: 442 So.2d 880.

Denied.


text:
    James E. ROBINSON v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, et al.
    No. 84-CC-0224.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Insurance Company of the State of Pennsylvania, and Fisher-Brooks Drilling Corporation, applying for writs of certiora-ri, mandamus and prohibition to the Third Judicial District Court, Parish of Lincoln, No. 32641; Second Circuit Court of Appeal, No. 16230-CW.

Denied.


text:
    JAMES M. VARDAMAN, CO., INC. v. L.B. PONDER, Jr.
    No. 84-C-0226.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re L.B. Ponder, Jr., applying for writ of review to the First Circuit Court of Appeal, No. 83-CA-0163, from the Twenty-First Judicial District Court, Parish of Tan-gipahoa, No. 56951, Div. “A”.

Case below: 443 So.2d 697.

Denied. The Court of Appeal judgment became final before the writ application was filed here.


text:
    STATE of Louisiana v. Melvin STOVALL.
    No. 84-KP-0237.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Melvin Stovall, applying for writ of certiorari, to the Criminal District Court, Parish of Orleans, No. 244-100.

Denied.


text:
    STATE of Louisiana v. Carlin MORGAN.
    No. 84-KK-0239.
    Supreme Court of Louisiana.
    March 9, 1984.
   Imre Carlin Morgan, applying for writ of review to the Fourth Circuit Court of Appeal, No. K-1457; Criminal District Court, Parish of Orleans, No. 297-460.

Case below: 445 So.2d 50.

Denied.

DENNIS, J., would grant the writ.


text:
    PLACID OIL COMPANY, S.L. Carruth, Jr., Plez A. Summers, Jr., W.B. Rawls, Bonsai Industries, Inc., Larry E. Temple, R.H. Green, Jr., Paul D. Smith, George W. Pope, Walter Jeff Nettles, Ronald B. Green, Rosewood Resources (POC), Inc. and Louisiana-Hunt Petroleum Corporation v. TENNECO INC.
    No. 84-CC-0244.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Tenneco Inc., applying for writ of certiorari, prohibition and mandamus to the 15th Judicial District Court, Parish of Lafayette, No. 82-3566, Sec. “E”; to the 3rd Circuit Court of Appeal, No. 83-1118.

Denied.

CALOGERO, J., would grant the writ.


text:
    G/O ENTERPRISES, INC., Lawrence Carr, and Glenda Petroleum Company v. MID LOUISIANA GAS COMPANY.
    No. 84-C-0246.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re G/O Enterprises, Inc., Lawrence Carr, and Glenda Petroleum Company, applying for writ of certiorari, or review to the Fourth Circuit Court of Appeal, No. CA-0898, from Civil District Court, Parish of Orleans, No. 79-14426.

Case below: 444 So.2d 1279.

Denied.


text:
    Gary HYATT v. CALCASIEU TELEVISION AND RADIO, INC.
    No. 84-CC-0249.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Calcasieu Television and Radio, Inc., applying for supervisory writs, 14th Judicial District Court, Calcasieu Parish, No. 81-3837; Court of Appeal, Third Circuit, No. 83-1110.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Oscar McClendon.
    No. 84-KH-0252.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Oscar McClendon, applying for writ of mandamus, to the Fourth Judicial District Court, Parish of Ouachita, No. 39-979.

Denied. Moot.


text:
    STATE of Louisiana v. Rudolph LEWIS.
    No. 84-KK-0255.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re State of Louisiana, applying for writs of review, to the Sixteenth Judicial District Court, Parish of St. Martin, No. 77091; Third Circuit Court of Appeal, No. K83-1120.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Oliver Ray MAYBERRY.
    No. 84-K-0259.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Oliver Ray Mayberry, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. CR-83-393; 27th Judicial District Court, Parish of St. Landry, No. 38267-A.

Case below: 443 So.2d 785.

Denied.

LEMMON, J., would ‘grant the writ.


text:
    Allen D. WISEMAN v. Dorothy Mae Collins WISEMAN.
    No. 84-C-0266.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Allen D. Wiseman, applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, No. 83-CA-319, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 241-064.

Denied.


text:
    STATE of Louisiana v. Billy E. DEBUSK.
    No. 84-KK-0267.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Billy E. Debusk, applying for remedial writs to the Eighth Judicial District Court, Parish of Winn, No. 28808; Court of Appeal, Second Circuit, No. 16130-KW.

Denied.


text:
    SHELL PIPE LINE CORPORATION v. Arley A. SARVER.
    No. 84-C-0272.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Shell Pipe Line Corporation, applying for certiorari, or writ of review, to the Third Circuit Court of Appeal, No. 83-291, First Judicial District, Parish of Acadia, No. 43762.

Case below: 442 So.2d 884.

Denied.

MARCUS and BLANCHE, JJ„ would grant the writ.


text:
    Kenneth Francisco GRAVES, Jr. v. RED RIVER VALLEY BANK.
    No. 84-C-0281.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Red River Valley Bank, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit No. 15987-CA; 26th Judicial District Court, Parish of Bossier, No. 59907.

Case below: 445 So.2d 122.

Denied.

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


text:
    STATE of Louisiana ex rel. Kenneth M. EDWARDS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0308.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Kenneth M. Edwards, applying for application for writ of certiorari and habeas corpus from the Nineteenth Judicial District Court, No. 1-6-76-617, Criminal Sec. I, Parish of East Baton Rouge.

Denied.


text:
    AMOCO PRODUCTION COMPANY v. TENNECO, INC.
    No. 84-CC-0327.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Tenneco, Inc., applying for writs of certiorari, prohibition and mandamus to the Third Circuit Court of Appeal, No. 84-42; 15th Judicial District Court, Parish of Lafayette, No. 83-2988-1.

Denied.

CALOGERO, J., would grant the writ.


text:
    Glenn S. PASSMAN v. Lucy Reid RAUSCH, Clerk of Court.
    No. 84-KH-0342.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Glenn S. Passman, applying for writ of mandamus to the Twenty-Second Judicial District Court, Parish of St. Tammany, No. 44098.

Denied.


text:
    STATE of Louisiana ex rel. Billy Ray COCKRELL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0361.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Billy Ray Cockrell, applying for remedial writs to the Second Judicial District Court, No. 12784, Parish of Claiborne.

Denied.


text:
    Michael S. BREAUX v. Eleanor M. BAILEY.
    No. 84-CC-0248.
    Supreme Court of Louisiana.
    March 9, 1984.
    Reconsideration Granted March 23, 1984.
   In re Eleanor M. Bailey, applying for a writ of review to the First Circuit Court of Appeal, No. CW-83-1453, from the Twenty-Third Judicial District Court, Parish of Assumption, No. 15300.

Not considered. Not timely filed.


text:
    Patricia J. Bush, Wife of and Joseph F. BUSH v. Grace A. Lee, Wife of and Robert E. LEE.
    No. 84-C-0282.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Grace A. Lee, wife of and Robert E. Lee, applying for writ of certiorari and review to the Fifth Circuit Court of Appeal, No. 83-CA-450, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 252-207.

Case below: 443 So.2d 702.

Denied.


author: CRAIN, Judge. , PER CURIAM.

text:
    Charles E. JENKINS v. AMERICAN PUBLIC LIFE INSURANCE COMPANY.
    No. 83 CA 0283.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Application for Rehearing Untimely and not Considered Feb. 22, 1984.
    Robert E. Palmer, Ponchatoula, for plaintiff-appellant.
    William H. Farris, Covington, for defendant-appellee American Public Life Ins. Co.
    Gordon W. Matheny, Hammond, for defendant-appellee Tangi Finance Service, Inc.

      Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge. ,

Plaintiff appeals a judgment of the trial court which granted defendant’s exception of prescription.

On December 18, 1970, Charles E. Jenkins (Jenkins) secured a loan from Tangi Finance Service, Inc. (Tangi). In conjunction with this loan Jenkins purchased a group credit insurance policy from American Public Life Insurance Company (American) that provided accident, health and life insurance coverage to repay the loan in the event of appellant’s death or disability.

Jenkins became disabled on or about March 15, 1971. Proofs of loss were submitted, and American began making payments on the claim to Tangi. The main cause of the disability upon which these payments were made was that Jenkins suddenly became afflicted with a disabling mental illness necessitating his hospitalization in a mental institution.

In May 1972, American terminated the payments on the basis that Jenkins’ disabling condition preexisted the effective date of the policy and therefore was not covered.

In July 1972, Tangi sued Jenkins for the balance due on the loan. The proceedings resulted in a judgment against Jenkins in favor of Tangi.

Jenkins took no further action in pursuit of his claim for insurance benefits from American until he filed this suit on August 5, 1976.

On the day of the trial, American filed an exception of prescription. An exception of nonjoinder of an indispensable party was also filed by American which was sustained by the trial court. This required appellant to join Tangi. The trial court then allowed Tangi to file an exception of res judicata based upon the previous judgment obtained against Jenkins on the loan. The res judi-cata exception was never considered by the trial court.

A hearing on the exception of prescription was set for February 27, 1981. At the hearing, medical records in support of Jenkins’ claim of mental incompetence were barred from introduction. The trial court then dismissed Jenkins’ suit as having prescribed because the suit was not filed until four years and two months after American had denied the claim.

On March 20, 1981, counsel for Jenkins filed a petition for a new trial alleging that Jenkins had been the victim of fraud and ill practice in that opposing counsel refused to stipulate to the medical reports as allegedly agreed upon. The petition for new trial was subsequently denied on October 15, 1982.

Appellant now argues on appeal that the trial court erred in sustaining American’s exception of prescription. We affirm.

In Jenkins’ first assignment of error he argues that the trial court erred in sustaining the exception of prescription upon the evidence presented and also that it was error for the trial court not to allow the introduction of the medical records to prove appellant’s mental incompetence during the prescriptive period.

The health and accident policy section of the Louisiana Insurance Code, La. R.S. 22:213(A), states in part that:

(N)o time limitation with respect to the filing of notice or proof of loss or within which suit may be brought upon the policy shall differ from the time limitations of the following provisions:
(5) Proofs of loss: Affirmative written proof of loss must be furnished to the insurer at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the insurer is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event later than one year from, the time proof is otherwise required. (Emphasis added.)
(11) Legal action: No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proofs of loss have been filed in accordance with the requirements of this policy. No such action shall be brought after the expiration of one year after the time proofs of loss are required to be filed. (Emphasis added.)

Under this type policy, appellant must submit proofs of loss not later than one year and 90 days after the date of the loss, and suit must be filed not later than one year thereafter. The record reflects that when appellant’s suit was filed on August 5, 1976, approximately five and one-half years had elapsed since he became disabled on March 15, 1971, and four years and two months since the last disability payment. Accordingly, we hold that there was no error when the trial court sustained American’s exception of prescription.

Appellant also argues that the medical records were improperly denied introduction into evidence. Appellant alleges the medical records, if allowed into evidence, would establish that appellant was mentally incompetent, and therefore prescription would be interrupted.

Although it is true that prescription does not run against mental incompetents, appellant failed in his responsibility to produce to the court sufficient evidence of his mental incompetence during the period of time in which he failed to take any action.

La.R.S. 13:3714 does allow properly certified copies of medical records to be received in evidence as prima facie proof of their contents. However, our review of the medical records which were proffered indicate that appellant was given a direct status discharge on October 13, 1972, from Southeast Louisiana Hospital. The records furnish no evidence of plaintiff’s mental capacity subsequent to that date. Since appellant failed to file suit until August 5, 1976, his suit has prescribed even considering the medical records.

Appellant, in the last assignment of error, argues that the trial court erred both at trial and upon application for new trial in failing to rule upon, render and sign a judgment disposing of the exception of res judicata filed by Tangi; Appellant seeks to have the case remanded to the trial court for a decision on this exception.

The issue of whether or not the trial court should have disposed of the exception of res judicata filed by Tangi is not before this court. The judgment maintaining the exception of prescription and dismissing the suit as to American was signed on March 11, 1981. No judgment was rendered as to Tangi. Appellant has appealed from the judgment of March 11, 1981. La. C.C.P. 2083 provides that the only judgments appealable are either final judgments or interlocutory judgments which may cause irreparable injury. Since there is no judgment as to Tangi, there is nothing from which an appeal can be taken. Conse-qufently, we cannot consider appellant’s assignment of error. Miami Truck & Motor Leasing Co. v. Dairyman, Inc., 263 So.2d 110 (La.App. 1st Cir.1972). The matter is still pending before the trial court.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

The decision of this court was rendered and mailed on December 22, 1983. The application for rehearing was filed on January 21, 1984. Pursuant to La.C.C.P. art. 2166, as amended by Act 451 of 1983 and effective August 30, 1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.


author: GRISBAUM, Judge. BOWES, Judge,

text:
    Lawrence J. KEATING, et al. v. Douglas A. CAMBRE, et al.
    No. 82-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Writ Denied March 16, 1984.
    See also, La.App., 420 So.2d 1355.
    Roland J. St. Martin, LaPlace, for plaintiffs-appellees.
    Tony Tillman, John L. Diasselliss, III, LaPlace, for defendants-appellants.
    Before CHEHARDY, KLIEBERT, BOWES, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is an appeal from a declaratory judgment which decreed Lawrence J. Keat-ing, Jr. and Kenneth A. Keating owners of a tract of land located in St. John the Baptist Parish. At issue is the interpretation of a 1964 judgment of possession and the effects of prescription upon a claim of 27 collateral heirs to be placed in possession of their interests in the property.

While single, Camille Alexander (Al-exandre) acquired a one-half interest in the property subject of this dispute. Later, after his marriage to Arcise Jacob, he acquired the remaining one-half interest in the same property. This one-half interest, therefore, was community property.

Camille Alexander died intestate on May 10, 1961. He was survived by his wife, Arcise Jacob Alexander. He had no descendants or ascendants. On January 6, 1964 his wife, Arcise, who had no forced heirs, died testate. She left all her property to Mr. and Mrs. Lawrence J. Keating, Sr., the parents of plaintiffs-appellees (Lawrence J. Keating, Jr. and Kenneth A. Keating) and plaintiffs-appellees’ ancestors in title.

The successions of Mr. and Mrs. Alexander were combined and settled in one proceeding. The judgment of possession that resulted was rendered May 28, 1964. After Lawrence J. Keating’s (a universal legatee) death, a judgment of possession (dated June 18, 1970 and amended April 12, 1971) placed his heirs in possession of all the property. This was also true of the judgment of possession (dated July 13, 1979) in Louisa Madere Keating’s succession.

On October 3, 1979 defendants, the 27 collateral heirs of Camille Alexander, obtained an ex parte order permitting the re-opening of the succession.. On February 7, 1980 they obtained an ex parte judgment of possession recognizing them as legal heirs of Camille Alexander and placing them in possession of his separate property — a one-half interest in the subject property.

On May 22, 1980 Lawrence J. Keating, Jr. and Kenneth A. Keating filed this declaratory judgment praying to be recognized as the owners of the entire property. The trial court found in favor of plaintiffs Lawrence J. Keating, jr. and Kenneth Keating. In its reasons for judgment, it found the May 28, 1964 judgment of possession, which resulted from the combining of Mr. and Mrs. Alexander’s successions, treated all the property as community. He held this judgment of possession placed Mrs. Alexander in possession of a one-half interest in her own right and of the other one-half interest as an heir under article 915 of the Civii Code. The court then stated that Mrs. Alexander’s universal legatees, Louisa Madere and Lawrence J. Keating, Sr., were placed in possession of Mrs. Alexander’s entire estate. The court also held the prescriptive statute R.S. 9:5682 was applicable and barred the collateral heirs’ October 3, 1979 suit to re-open the succession. From this judgment decreeing plaintiffs to be the sole owners of the property, the collateral heirs appeal. We reverse.

Our reversal is based upon an interpretation of the May 28, 1964 judgment of possession. The following paragraphs are pertinent:

IT IS ORDERED, ADJUDGED AND DECREED that Arcise Jacob, widow of Camille Alexandre (or Alexander) be, and she is hereby decreed to be the surviving spouse in community with the said Camille Alexandre (or Alexander) and, as such, entitled to the ownership of, and sent and put into possession of the undivided one-half (Va) interest of the said community property belonging to the said Camille Alexandre (or Alexander) and more fully described below.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the last will and testament of the deceased, Ar-cise Alexandre, in nuncupative form by public act before Clarence A. Frost, Notary Public, dated October 26, 1964, be registered and executed; that the administration of the decedent’s estate be dispensed with; that Louisa Madere, wife of/and Lawrence J. Keating, as universal legatees of the decedent be and they are hereby sent and put into possession of the decedent’s entire estate, there being no particular legacies due therein, and in particular of the following described property:
1. REAL ESTATE
A CERTAIN TRACT OF LAND, situated in the Parish of St. John the Baptist, on the left bank of the Mississippi River, measuring one half arpent, more or less, front on said river by 80 arpents, more or less, in depth; bounded on the upper line by property now or formerly belonging to Leon Vicknair and on the lower line by the property formerly belonging to Fergus Montegut (later Charles St. Martin, Jr.); together with the buildings and improvements thereon, and all the rights, ways, servitudes, privileges and advantages thereunto belonging or in anywise appertaining, including all rights to the batture or alluvial in front of the said tract of land.
LESS AND EXCEPT:
1) Lot sold to Ida Keating, wife of Henry Madere, registered in Conveyance Book 14, folio 203.
2) Lot sold to St. John the Baptist Parish School Board, regisfered in Conveyance Book 14, folio 267.
3) That portion of the above tract from L. & A. right of way to 80-arpent line sold to T.L. James & Co., Inc., registered in Conveyance Book 20, folio 466.
4) Lot sold to Laura Williams Brown, registered in Conveyance Book 32, folio 263.
5) Lot sold to Medrick Williams, registered in Conveyance Book 34, folio 50.
6) Lot sold to Jessie Grant, et al., registered in Conveyance Book 34, folio 102.
7) Lot sold to Frank Dickson, registered in Conveyance Book 34, folio 499.
8) Lot sold to Anderson King, registered in Conveyance Book 35, folio 499.
9) Lot sold to Raphield Warren, registered in Conveyance Book 38, folio 339.
10)Lot sold to Levy Miller, Jr., registered in Conveyance Book 43, folio 159. 2. All of the furnishings and fixtures located in the above described property.... (Emphasis added)

The first paragraph (quoted above) limits the property Arcise Jacob Alexander owned and could bequeath to her universal legatees, Louisa and Lawrence Keating. It places Mrs. Alexander in possession of a one-half interest in the community property belonging to her husband, Camille Alexander. Since the community owned only one-half interest in the subject property, only that one-half interest in the property is affected by the judgment of possession.

In the second' paragraph (quoted above) Mrs. Alexander’s universal legatees were put in possession of “decedent’s entire estate" which includes only a one-half interest in the described property. Thus, this judgment of possession correctly places Louisa Madere Keating and Lawrence J. Keating in possession of Arcise Alexander’s interest in the subject property which was only a one-half interest in the whole. However, subsequent judgments of possession did incorrectly place the various Keating heirs in possession of the whole of the property.

The first judgment of possession, which the Keatings’ title to the entire property hinges, was presumably registered in the conveyance records of St. John the Baptist Parish on June 18, 1970; the ten-year prescriptive period provided for in La. R.S. 9:5682 (as amended in 1975) began to run from that date. Camille Alexander’s collateral heir’s ex 'parte motion to re-open his succession, which was filed October 3, 1979, was timely, and their February 7, 1980 ex parte judgment of possession is, therefore, upheld.

For the reasons assigned, the judgment of the trial court decreeing Lawrence J. Keating, Jr. and Kenneth A. Keating as owners of the subject property is reversed and defendants, 1) Douglas A. Cambre, 2) Mrs. Carol Cambre Watts, 3) Michael Cam-bre, 4) Stanley Cambre, 5) Roger Duhe, Jr., 6) Mrs. Brenda Duhe Stephens, 7) Gwen Duhe Breaud, 8) Roy Duhe, 9) Douglas Cambre, 10) Doris Cambre, 11) Foster Cam-bre, 12) Mrs. Hilda Jacob Keating, 13) Nolan Jacob, 14) Herman Jacob; 15) Gene Ryan, 16) Allan (Allen) Ryan, 17) Malcolm Keating, 18) Donald Keating, 19) Terry Keating, 20) Mrs. Maizie Keating Abadie, 21) Sherry Alexander, 22) Norman Alexander, Jr., 23) Robert (Boggie) Alexander, 24) Charles D. Alexander, 25) Mrs. Carolyn Alexander Michel, 26) Daniel Alexander, Jr., and 27) Lester Alexander are decreed the owners of a one-half interest in the subject property. It is further decreed that Lawrence J. Keating, Jr. and Kenneth A. Keating are owners of a one-half interest in the subject property.

REVERSED.

BOWES, J., dissents.

BOWES, Judge,

dissenting.

I respectfully dissent from the majority opinion. I would affirm the judgment of the trial court.

While I agree with the majority finding that LSA R.S. 9:5682 (as amended in 1975) is the controlling statute as to prescription in this case, I cannot agree with their interpretation of the May 28, 1964 Judgment of Possession.

The successions of Mr. and Mrs. Camille Alexander were settled in one proceeding. In this judgment of possession, rendered and signed on May 28, 1964, Mrs. Alexander, under the provisions of Louisiana Civil Code article 915 and in the absence of descendants or parents, was recognized as “the surviving spouse in community with the said Camille Alexandre (or Alexander) and, as such, entitled to the ownership of, and sent and put into possession of, the undivided one-half interest of the said community property belonging to the said Camille Alexandre (or Alexander) and more fully described below.” (emphasis supplied) What is “described below” is the property in its entirety.

In the same judgment of possession in the following paragraph, Louisa Madere, wife of, and Lawrence J. Keating (Sr.), parents of the plaintiffs, were recognized as universal legatees of Mrs. Alexander and were placed in possession of “... decedent’s [Mrs. Alexander’s] entire estate_ and in particular of the following described property:”. Thereafter is a description of all of the property, being the identical description of the property that is “described below” in the preceding paragraph. This is the same and only description entitled “Real Estate” in the entire judgment of possession.

Erroneous as it may have been at the time, all of the property was treated as community and Mrs. Alexander was recognized as owner of and placed in possession of all the property owned by Camille Alexander as the only heir of her deceased husband under Article 915 of the Civil Code, supra, (repealed in 1981).

A true copy of this judgment, which was introduced in the trial court as Exhibit “D”, contains the following notations: “5-28-64 C.O.B. 50, folio 524 #27493.” The trial judge held, and I agree, that these notations are sufficient proof of registry and show the judgment of possession was registered in the conveyance records of St. John the Baptist Parish the same day it was signed, on May 28, 1964, at entry number 27493, in Conveyance Office Book 50, folio 524.

After the deaths of Mr. and Mrs. Lawrence J. Keating, the universal legatees of Mrs. Alexander, the property devolved upon their three children; and, after the death of one of the children, the other two (plaintiffs herein) were eventually placed in possession of all of the property.

On October 3, 1979, eighteen years and five months after the recordation of the judgment of possession in the Succession of Camille Alexander, defendants obtained an ex parte order permitting the re-opening of the succession and, on February 7, 1980, obtained an ex parte judgment of possession recognizing them as legal heirs and placing them in possession of a one-half interest (presumably that interest acquired by Mr. Alexander while he was single) in the subject property.

On May 22, 1980, plaintiffs filed the instant suit, praying for a declaratory judgment recognizing them as owners.

I find that the judgment of possession on which the plaintiffs’ title hinges was registered in the conveyance records of St. John the Baptist Parish on May 28,1964, and the 10-year prescriptive period (under the original version of R.S. 9:5682, which was passed in 1960, and which requires “good faith” possession) expired May 28, 1974, more than five years before the defendants sought to re-open the succession of Camille Alexander.

In my opinion, the conclusion by the majority that the first judgment of possession on which the Keatings’ title to the entire property hinges is that judgment registered in the conveyance records of St. John the Baptist Parish on June 18, 1970, is based on erroneous reasoning. For prescriptive purposes, the Court must consider all legal proceedings involved in the chain of the Keatings’ title and the judgment of May 28, 1964, which described all of the property owned by Camille Alexander, is necessarily a part of one of these proceedings.

The reasoning employed by the majority allows them to “tailor” the facts to fit their conclusion that the applicable date for the start of the prescriptive period was June 18, 1970, instead of May 28, 1964. This, in turn, allows them to find that less than ten years (the' prescriptive period involved), rather than some eighteen years (which the trial judge found and with which I agree), elapsed since the plaintiff had been placed in possession of all the property in question. Hence, their conclusion that prescription had not run against defendants-appellants in 1979, when they filed their ex-parte motion.

Defendants are descendants of heirs of Camille Alexander who were not recognized as such in the judgment of possession signed on May 28,1964 in the succession of the said Camille Alexander. Plaintiffs acquired the property through someone (Mrs. Camille Alexander) who was recognized as an heir in his succession. Defendants’ claim should have been asserted within ten years of the registry of this judgment of possession (May 28, 1964) and it was proven at the trial that plaintiffs, or their ancestors in title, have been in continuous, uninterrupted, peaceable, public and unequivocal possession of the property in excess of ten years. Therefore, the action of the defendants-appellants in asserting a claim to the property involved herein and having themselves recognized as owners thereof in the ex parte judgment of possession dated February 7, 1980, was barred by the prescription established by L.R.S. 9:5682.

For the foregoing reasons, I would affirm the judgment of the trial court.

      . Their sister, Marilyn Jones Keating, had previously died.

      . Initially, default judgments were confirmed against 12 defendants. After an appeal, Keating v. Cambre, 407 So.2d 787 (La.App. 4th Cir.1981), the judgment appealed from was annulled and set aside and the matter remanded to the trial court for further proceedings.

      . The incorrect judgments of possession are the following:
      Succession of Lawrence J. Keating, Sr. (father) —June 18, 1970 and amended judgment April 12, 1971.
      Succession of Marilyn Jones Keating (sister)— January 16, 1975.
      Succession of Louisa Madere Keating (mother) —July 13, 1979.

      . The notation of registry — C.B. 69/234 does not actually indicate a date unlike the notation found on the 1964 judgment of possession in the successions of Arcise Jacob and Camille Alexander.

      .Since the collateral heirs filed to re-open Camille Alexander’s succession on October 3, 1979, La.R.S. 9:5682 (as amended in 1975) has been repealed by Act 721 of 1981 and replaced by La.R.S. 9:5630; however, the provisions of La. R.S. 9:5682 apply. See Harlaux v. Harlaux, 426 So.2d 602, 603 (La.1983); Jackson v. D’Aubin, 338 So.2d 575, 581-82 (La.1976); Succession of Kinchen, 391 So.2d 1278, 1280-81 (La.App. 1st Cir.1980).
      La.R.S. 9:5682 provided in pertinent part:
      A. An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly or collectively, have been in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish where the property is situated, irrespective of the good faith or bad faith of the third person’s ancestors in title, including the heir or legatee of the deceased recognized as such in the judgment of possession.

      C. As used herein, "third person” means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.


author: GULOTTA, Judge.

text:
    Mrs. Leona Monteleone RUSSO v. CITY OF NEW ORLEANS.
    No. CA-0928.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied March 21, 1984.

      Meyer Sabludowsky, New Orleans, for appellant.
    Barbara I. Stavis, New Orleans, for ap-pellee.
    Before GULOTTA, REDMANN and AUGUSTINE, JJ.
   GULOTTA, Judge.

In this intersectional accident case, plaintiff, Leona Monteleone Russo, appeals the dismissal of her damage suit. We affirm.

The accident occurred at approximately 2:45 p.m. on February 19, 1982, at the controlled intersection of So. Carrollton and So. Claiborne Avenues in the City of New Orleans. At the scene, So. Carrollton is a six-lane, divided North-South throughfare crossing the six East-West lanes of So. Claiborne, also divided by a wide median or “neutral ground.”

The defendant vehicle driven by Karl Frankhouser, was traveling in the center, eastbound lane of So. Claiborne toward downtown New Orleans, and was favored with a green light. Plaintiff Russo was headed southbound in the left, median lane of So. Carrollton towards the Mississippi river. While attempting to avoid blocking the path of a police. car with activated lights and sirens behind her in the left lane, Russo entered the eastbound lanes of So. Claiborne against the red light and collided with Frankhouser’s vehicle approaching from her right. After impact, Russo’s car veered and rolled to the left, completely traversing the eastbound lanes of So. Claiborne. The police car behind Russo did not hit either car.

Russo filed suit alleging both the negligence of the defendant driver Frankhouser and the City of New Orleans. After trial on the merits, a jury exonerated Frank-houser and found Russo 100% at fault for the accident. In accordance with the verdict, the trial judge dismissed Russo’s suit against Frankhouser, and further dismissed her claim against the City.

Appealing solely on the issue of Frank-houser’s liability, Russo contends that Frankhouser’s negligence in failing to stop his vehicle before entering the intersection in response to the lights and sirens of the approaching emergency vehicle was the sole proximate cause of the collision. She further argues that she was free of negligence because she had only inadvertently entered the eastbound lanes of So. Claiborne when faced with the “sudden emergency” of removing herself from the path of the following police car. Alternatively, Russo asserts the right to partial recovery of damages under the doctrine of comparative negligence.

The jury had the benefit of the testimony of four eyewitnesses to the accident: plaintiff, the' defendant driver and his guest passenger, and the police officer. Plaintiff’s version of the accident was in direct conflict with that of the other witnesses.

Russo testified that she was stopped behind another car at a red light in the left, southbound lane of So. Carrollton at its intersection with the westbound lanes of So. Claiborne when the police car approached behind her with lights and sirens activated. Because other cars were stopped in the lanes to their right, Russo and the car in front of her both crossed the westbound lanes against the red light to clear the way for the following police car.

According to Russo, after reaching the safety of the median area separating the opposing lanes of So. Claiborne, the vehicle in front of her moved into the center lane of So. Carrollton and stopped. To remove herself likewise from the left lane, Russo moved in front of this other car and also stopped but protruded beyond the median into the left eastbound lane of So. Claiborne where she collided with Frankhouser approaching from her right.

In contrast to Russo’s version, George Campbell, who was driving the police car behind her, testified that Russo’s car was the only one stopped in front of him at the red light. According to this witness, Russo safely crossed the westbound lanes of So. Claiborne against the light, but continued slowly traveling in the left lane across the median area and into the eastbound lanes of So. Claiborne, without moving to the center lane or stopping before colliding with Frankhouser’s ear. Officer Campbell testified there were no other cars on So. Carrollton in the median area and that Russo “could have easily moved over to the right” to allow him to pass in the left lane. Although Campbell saw a car stopped in the left eastbound lane of So. Claiborne before the accident, he did not see Frank-houser’s car in the center lane until impact.

Karl Frankhouser, the defendant driver, testified that he was traveling at a speed of 30-35 MPH eastbound on So. Claiborne and had been favored with a green light for at least 200 feet before crossing So. Carroll-ton. At a distance of about 10-20 ft. before the intersection, Frankhouser heard sirens but saw no flashing lights. In response, Frankhouser took his foot off the accelerator, but had “no time” to ascertain the location of the emergency vehicle. When he saw Russo’s car in the intersection he applied his brakes, but could not avoid the accident. According to Frank-houser, Russo’s car was the only one in the median area, and he did not see the police car until after the accident.

Frankhouser’s version of the accident was largely corroborated by his guest passenger Danny Reed. Before impact, however, Reed had seen the police car behind Russo in the median area and had assumed that “the policeman was ... pulling the lady over....” He testified that Russo was “moving ... very slowly” as if “she was coming to a stop ... to wait for the light”. When he next saw Russo before the collision, shé was traveling much faster.

We find no error in the jury’s exoneration of Frankhouser from liability. The evidence supports its finding, based on credibility determinations, that Frankhouser was free of any fault.

As Frankhouser approached the intersection having been favored with the green light for 200 feet, he could assume that motorists on the intersecting cross street would obey the traffic signal and stop. See Youngblood v. Robison, 239 La. 338, 118 So.2d 431 (1960); Putt v. Daussat, 381 So.2d 955 (La.App. 4th Cir.1980). Under these circumstances, his failure to avoid a collision with Russo, who invaded his lane of traffic, does not constitute negligence.

It is also true, however, that a motorist has a statutory duty to yield to an approaching of an authorized emergency vehicle. Nonetheless, this duty to yield arises only when the motorist observes or hears, or should have observed or heard, the audible and visual warning of such vehicle. See Cassity v. Williams, 373 So.2d 586 (La.App. 3rd Cir.1979); Calvert Fire Ins. Co. v. Hall Funeral Home, 68 So.2d 626 (La.App. 2nd Cir.1953).

In the instant case, Frankhouser testified that he first heard the police siren only 10-20 feet before the intersection and did not have time to ascertain its location. Evidence is lacking that he should have observed the approach of the police car sooner. Indeed, although Officer Campbell testified that another eastbound car in the left, median lane of So. Claiborne had stopped before the intersection, Campbell did not see Frankhouser's vehicle until impact.

It must also be borne in mind that Frankhouser collided with Russo’s car, not the emergency vehicle driver by Officer Campbell. Frankhouser’s duty to yield was owed to the police car, not to Russo. The risk encompassed by breach of that duty was a collision with the emergency vehicle, not a private vehicle negligently driven by another motorist. Under a duty-risk analysis, therefore, Frankhouser’s failure to stop before the intersection was not the legal cause of the collision with Russo.

We likewise reject Russo’s argument based on the “sudden emergency” doctrine. This doctrine relieves a party of negligence if he is suddenly placed in a position of imminent peril without sufficient time to consider and weigh all the circumstances or determine the best means to avoid the impending danger, unless the emergency is brought about by his own negligence.. See Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972).

Although Russo was faced with the situation of yielding to a following police car, the sudden emergency doctrine does not apply in her case since an obviously safe alternative was available to her. A reasonable inference from Officer Campbell’s testimony is that Russo could easily" have moved into the center lane of So. Carrollton and stopped in the median area short of entering the eastbound lanes of Claiborne to allow the police car to pass. Instead, Russo continued moving in the left lane against the red light and into the path of Frankhouser’s vehicle. Furthermore, Russo’s testimony that she had stopped before the collision simply does not comport with the undisputed physical evidence that her car rolled across the eastbound lanes of So. Claiborne after impact. Under these circumstances, we cannot say that the jury erred in finding Russo solely negligent.

In so holding, we distinguish Wiley v. Sutphin, 108 So.2d 256 (La.App. 2nd Cir. 1958), relied on by plaintiff. In Wiley, a defendant motorist, upon hearing the approach of an emergency vehicle, pulled to the right and parked until it passed. As she attempted to re-enter the stream of traffic, she heard a second siren but could not move to the right again because of the presence of a parked car. Confronted with that situation, she stopped her car, although it protruded at an angle beyond the center line of the street and into the lane of travel of plaintiff’s oncoming vehicle. The Wiley court held that defendant’s action in stopping her vehicle was, under the circumstances, an “act of prudence” since it was impossible for her to take a position near the curb on her right-hand side of the street on hearing the siren.

In the instant case, unlike Wiley, Russo had a reasonable and safe alternative to remove herself from the path of the following emergency vehicle without invading Frankhouser’s path in the eastbound lanes of So. Claiborne. The Wiley decision, therefore, is clearly distinguishable.

Accordingly, the judgment is affirmed.

AFFIRMED.'

      . LSA-R.S. 32:125(A):
      A. Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, ... the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed,


author: KLEES, Judge.

text:
    STATE of Louisiana v. Herbert LEE.
    No. KA-1126.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee, State of La.
    Bernard S. Dolbear, New Orleans, for defendant-appellant, Herbert Lee.
    Before KLEES, GARRISON and CIAC-CIO, JJ.
   KLEES, Judge.

On January 11, 1982, the appellant was charged by bill of information with aggravated battery in violation of R.S. 14:34. He waived his right to trial by jury and on September 16, 1982, the trial judge found him guilty as charged. On November 30, 1982, he was sentenced to serve seven years at hard labor.

FACTS

On November 5, 1981, at about 6:45 p.m., Curtis Robinson was shot and seriously wounded by a man he identified as the defendant, Herbert Lee. Robinson testified that on the morning of the shooting the defendant accosted him when he was on his way to work. The defendant accused Robinson of propositioning the defendant’s girlfriend. Although Robinson denied this allegation, the defendant continued badgering him. As Robinson got on the bus to go to work, the defendant threatened to “get” him.

Sometime after 6:00 pim., that same day, Robinson returned to his neighborhood to pick up his wallet which he had left at home. As Robinson approached the gate to his apartment, the defendant appeared from around the corner with a shotgun in his hand. From a distance of about 10 feet, the defendant shot Robinson in the leg. Robinson fell to the ground, and the defendant put the shotgun to Robinson’s head and asked him if he “wanted more.” The defendant then warned Robinson to stay away from his (the defendant’s) girlfriend, and he fled.

Curtis Robinson further testified that he was subsequently taken to Charity Hospital, where he remained for over two months while fourteen operations were performed on him. He testified that in the aftermath of the shooting, his keys to his delivery truck were taken and his truck which he had parked a few blocks from the scene was stolen. He asserted that he had no doubts that the defendant was the man who shot him.

A shotgun, which Robinson identified as resembling the gun used to shoot him, was found two days later in a backyard in the neighborhood. The police determined that the gun was functional, but no tests were run to see if it had been recently fired. There was no evidence to connect this gun to either the shooting or the defendant.

Tanya Robinson, the victim’s wife, testified that at about 6:45 p.m. she heard a gunshot outside of their apartment. She looked out of the back door and saw the defendant standing over a person lying on the ground, holding a shotgun on that person. Because a washing machine obstructed her view, she could not see who was lying on the ground. She heard the defendant ask the person on the ground if he “wanted more” and she heard the person reply “no”. The defendant left. Mrs. Robinson then heard her name being called, went outside, and found Mr. Robinson lying wounded on the ground.

Marjorie Wheeler, who lives near the scene of the shooting, testified that at about 6:45 p.m. she was standing on her porch and she saw the defendant and his “wife” standing in the street. She heard the defendant say that he and Robinson had had “a fuss” earlier that morning. Ms. Wheeler testified that she then saw Robinson walk by on his way to his house. The defendant went around the corner and she went inside her house. She then heard a gunshot. On cross-examination, Ms. Wheeler admitted that she had told an insurance adjuster that she saw the defendant shoot Robinson. She testified that she did not see the shooting, but was merely repeating what others had told her.

Mary Ann Pollard, the defendant’s “common law wife”, testified that on the morning of the shooting the defendant went with his father to Pontchatoula to work on his sister’s house. She said that on the evening of the shooting, she was sitting on the steps drinking beer when she “heard words” coming from behind a truck. She went to the end of the truck and saw Robinson and a “little dude” arguing about a cocaine sale. She then heard a shot and saw the “little dude” running away.

Later, she testified, the police came to her house looking for “Herbert Hatten”, the defendant’s son. She said that the defendant did not return home that night because he had gone fishing and drinking after he finished working on his sister’s house. She later contacted the defendant and told him that the police were looking for him.

Ms. Pollard testified that she had psychiatric problems but was not taking any medication at the time of the shooting. She said that the defendant was a jealous man. She denied telling him that Robinson tried to rape her. She testified that she had some problems remembering things that happened in the past. She had a prior conviction for receiving stolen goods.

The defendant, Herbert Lee, testified that on the morning of the shooting he approached Robinson, seeking to end the bad feelings they had for each other as a result of an earlier argument. Robinson rejected his offer of friendship. Lee then left the city with Darlene Maples and John Simmons to go fishing off the Manchac Bridge. They fished until dark, then returned to Maples’ and Simmons’ house to cook the fish. Lee spent the night at their house.

The next day Lee learned that the police wanted him. He testified that he went to both Central Lock-up and the Sixth District police station and was informed at both places that he was not wanted. He then went to Pontchatoula for a week. When he came back to New Orleans, he again went to the Sixth District, where he was then arrested.

Lee testified that he did not own any guns. He knew Robinson and Ms. Pollard had dated before, but he was no longer jealous. He testified that he did not know that Ms. Pollard and Robinson had seen each other the night before the shooting. Lee admitted having prior convictions for simple burglary and for a “pistol charge”.

On rebuttal, Will Rumley testified that on the day of the shooting he saw the defendant in the neighborhood of the shooting at around 3:30 p.m. and again at around 6:00 p.m.

Assignments of Error I. and IV.

The appellant’s assignment of error numbers one and four deal with the State’s use of a photograph, exhibit S-3, to portray the scene of the shooting. By his assignment of error number four, the appellant alleges that because the photograph “clearly distorts the amount of light present and available to the alleged witnesses,” its admission into evidence was error. However, the appellant does not even attempt to prove that the photograph “clearly distorts” the lighting conditions. The only mention of such distortion in the entire transcript is by the defense attorney himself who was not present at the scene anytime near the time of the shooting. The appellant’s mere allegation of the photograph’s distortion of the lighting conditions is not a sufficient basis for this court to conclude that the trial court erred by admitting the photograph into evidence. The appellant’s assignment of error number four is without merit.

By his assignment number one, the appellant alleges that the State committed reversible error by failing to mention in its opening statement that it intended to introduce S-3, the photograph of the shooting scene. As support of this allegation, the appellant contends that the State could have somehow subpoenaed the New Orleans Public Service, Inc. (who supplied the lighting at the scene) to present “an accurate dispassioned evaluation” of these lighting conditions. The appellant contends that the State erred by not indicating in its opening statement that the use of S-3 would be it’s “sole means of presenting to the Court the lighting present at the crime scene.”

Article 766 of the Code of Criminal Procedure provides that the State’s opening statement “shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” See State v. Brown, 428 So.2d 438 (La.1983). Therefore, the State was not required to mention in its opening statement that it would introduce S-3 as the “sole means” of showing the lighting conditions at the scene.

The appellant’s other argument, that the State should have subpoenaed someone from N.O.P.S.I. to describe the lighting of the scene, is equally without merit. The State did not err by choosing instead to introduce a picture of the scene.

Accordingly, assignments one and four are without merit.

Assignments of Error II. and VIII.

The appellant’s assignments of error numbers two and eight both deal with statements made to an insurance adjuster concerning the theft of Curtis Robinson’s liquor delivery truck that occurred sometime around the time of the shooting. By his assignment number two, appellant alleges that the State should have supplied him with copies of the statements made by Michael and Cheryl Wheeler, who did not testify at trial, which would have allowed him to show that Marjorie Wheeler’s testimony was based upon “hearsay-neighborhood backfence gossip.” By assignment number eight, he alleges that these statements would have shown a possible motive for someone else to have attacked Robinson, and as such they were exculpatory and should have been supplied to him.

The United States Supreme Court has held that the Fourteenth Amendment mandates that the prosecution must disclose to the defense evidence favorable to the defendant if such evidence is material to his guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court ruled that the prosecution must disclose such evidence for the impeachment of a witness whose testimony (and credibility) may be determinative of the accused’s innocence or guilt. Upon receiving a specific request for such material, the prosecution must either disclose it to the defense or give it to the judge for an in camera inspection of the material, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). See also State v. Oliver, 430 So.2d 650 (La.1983); State v. Perkins, 423 So.2d 1103 (La.1982).

Here, the statements to which the appellant refers were statements apparently given to an insurance agent investigating Robinson’s workman’s compensation claims and the theft of his truck. The defense counsel was supplied at trial with a copy of such statement made by Marjorie Wheeler and he was given a short recess in order to inspect the statement. He then cross-examined Ms. Wheeler as to this statement, wherein she claimed she had seen the appellant shoot Robinson. At trial, she testified that she had not seen the shooting and that the statement she gave to the insurance adjuster contained information that she had learned from other people who saw the shooting. A statement of Tanya Robinson was also produced at trial. However, no mention was made at trial of the existence of such statements given by Michael and Cheryl Wheeler.

The appellant argues that these statements were exculpatory because they showed that Michael and Cheryl Wheeler were part of a group of people who gave false information to an insurance adjuster in order to help Robinson get a better workman’s compensation award. He contends that these statements, together with the fact that Robinson’s truck was missing, “clearly establishes an entire different basis for his alleged attack by a person other than the defendant.”

Apparently these statements were not produced. In fact, there are no indications in the record that the appellant ever requested their production after he learned of their existence. If these statements contain what the appellant alleges they contain, such contents would not be exculpate-ry. On the contrary, it is possible that the information concerning the shooting that was given by Marjorie Wheeler to the insurance adjuster may have come from Michael or Cheryl Wheeler. As such, the proposed contents could have been incul-patory in nature.

The appellant has not shown that these unrequested statements were exculpatory. We conclude that the State was under no obligation to supply the defense with copies of these statements. Assignments of error numbers two and eight are without merit.

Assignment of Error III

In his assignment of error number three, the appellant contends that the trial court erred by admitting into evidence a shotgun found a few blocks from the shooting scene a few days after the shooting. Testimony was taken from an eight-year-old boy who was present when his cousin found the shotgun in his back-yard, as well as from the policeman who retrieved the gun from the place where the boys found it, and from the officer at the crime lab who determined only that the gun was operational more than four months after it was found.

Rodney Robinson, the child who was present when the shotgun was found, could not identify the policeman who retrieved the gun. However, he did testify that the gun was left where it was found until the police arrived to pick it up. Officer Pizzo then testified as to the time and location of his retrieval of the shotgun.

The State did not attempt to establish that the shotgun belonged to or was used by the appellant. However, Curtis Robinson testified that the gun looked like the one which the appellant used to shoot him.

The Louisiana Supreme Court has held that the trial court has wide discretion in its determination of the relevancy of the evidence presented, and such determination will not be overturned absent clear abuse of this discretion. State v. Chaney, 423 So.2d 1092, 1099 (La.1982); State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Bates, 397 So.2d 1331, 1335 (La.1981). The Court has noted that “[tjhere should be a logical or rational connection between the fact which is sought to be proved and the fact which is at issue in the case.” State v. Huizar, at 748.

In a case similar to the one at bar, State v. Manieri, 378 So.2d 931 (La.1979), the trial court admitted into evidence three knives which were “similar” to the murder weapon but which were not used in the slaying. The Supreme Court held that the trial court erred by admitting the knives into evidence. However, such error was harmless because no effort was made to connect the knives to the crime or to the defendant, and a State witness testified that the knives were not the murder weapon.

In this case, the shotgun was similar to the one used in the shooting, and it was found near the scene a few days after the shooting. No attempt was made to tie the 'gun to the appellant. Unlike Manieri, there was no testimony here which excluded the shotgun from being the weapon used in the shooting.

The fact finder in Manieri was a jury. The Supreme Court reasoned that the admission into evidence of “similar” weapons was potentially prejudicial because the jury may automatically assume that the weapons were the ones used in the perpetration of the crime and therefore the weapon’s prejudicial effect would outweigh their probative value. Here, the fact finder was the trial judge, and we conclude that such considerations as were employed by the Supreme Court in Manieri are not applicable to this case. Although admitting the shotgun into evidence may constitute error, there is no showing that the trial judge based his judgment on the fact that the shotgun admitted into evidence was the one actually used in the commission of the crime. In light of this, as well as the overwhelming evidence brought against the defendant, we conclude that the admission into evidence of the shotgun and the testimony concerning it did not constitute reversible error.

Assignment of Error V

By his assignment of error number five, the appellant alleges that the trial court erred by allowing the State to introduce into evidence medical records of the victim from Charity Hospital. The appellant sets forth two grounds for his contention: (1) the custodian of the records failed to appear to authenticate these records; and (2) the records “did not accurately reflect the necessary serious wounds sustained by the victim to place him in the category of victim for the crime for which the defendant was charged.”

Appellant’s second ground for objection was not raised at trial. Our Supreme Court has long held that a new basis for an objection cannot be raised for the first time on appeal. State v. Feeback, 414 So.2d 1229 (La.1982); State v. Ford, 349 So.2d 300 (La.1977). Therefore, this contention is not properly before this court.

The appellant’s other contention, that these records from Charity Hospital were not adequately authenticated, was raised at trial. Attached to the records from Charity Hospital was a letter of authentication. The trial court ruled that the records were duly authenticated and they were admitted into evidence. The defense attorney did not request at trial that the State produce the man who authenticated these records.

Certified copies of hospital records are admissible in evidence as prima facie proof of their contents if signed by the administrator or the medical records librarian of the hospital from which the records were received. R.S. 13:3714. Section 3714 further provides:

the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination

The Louisiana Supreme Court has held that R.S. 13:3714 is applicable to criminal cases and as long as the statutory requirements for authentication are satisfied there is no denial of the accused’s right to confront witnesses against him. State v. Trahan, 332 So.2d 218 (La.1976); State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970).

The trial court in the case at bar found that the Charity Hospital records had been sufficiently authenticated. By the provisions of R.S. 13:3714, the defense could have subpoenaed the person who authenticated these records to appear at trial for cross-examination. He could have even asked for a recess to attempt to contact this person if he was unaware of the existence of the records and their authentication until they were presented at trial. The appellant’s contention that the State was obligated to subpoena this person for the defense’s cross-examination at trial is contrary to the wording of the statute and is without merit.

The appellant’s last contention is that the State should have supplied the name of the compiler of these records “as under Article 768.” C.Cr.P. Art. 768 has no application here because it pertains to the State’s obligation to advise the defense in writing pri- or to opening statements of its intent to introduce into evidence a confession or in-culpatory statement made by the defendant.

Accordingly, assignment of error number five has no merit.

Assignment of Error VI

The appellant’s assignment of error number six deals with the sufficiency of evidence used to convict him of aggravated battery. Specifically, he alleges: (1) that the State failed to prove that the shotgun entered into evidence was “similar” to the one used to shoot the victim, and (2) that the evidence presented of the victim’s injuries failed to exclude the possibility that he could have received these injuries from a source other than the gunshot.

In assessing the sufficiency of evidence to support a conviction in a direct evidence ease, the reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

Aggravated battery is defined as “a battery committed with a dangerous weapon”. R.S. 14:34. Battery, as defined by R.S. 14:33, includes “the intentional use of force or violence upon the person of another.” In the instant case, the victim was shot with a shotgun. Medical records were introduced which apparently showed that shotgun pellets were taken from Robinson’s leg. Mrs. Robinson saw the appellant standing over someone with a shotgun in his hand. Robinson himself testified that the appellant shot him with a shotgun. Apparently, the judge chose not to believe the appellant’s and his wife’s testimony that he was out of town on the night of the shooting. Viewing the evidence in the light most favorable to the prosecution, the judge could have found the appellant guilty beyond a reasonable doubt. State v. Trahan, 416 So.2d 65 (La.1982); State v. Brown, 395 So.2d 1301 (La.1981).

The appellant’s contention that the State failed to prove that the shotgun introduced into evidence was “similar” to the one used to shoot the victim is groundless. The victim testified that the weapon used to shoot him looked like the one that was shown to him at trial. Even if he had failed to so identify the shotgun’s similarity to the weapon used in the shooting, such failure should not have resulted in an insufficiency of evidence to convict him of aggravated battery because the State was not required to produce either the weapon used or a shotgun similar to the weapon used in the offense. Such production was not an essential element of the crime.

The appellant’s other contention, that the evidence presented of the victim’s injuries failed to exclude the possibility that he could have received these injuries from a source other than the gunshot, is equally groundless. The State merely had to prove that an “intentional use of force or violence upon the person of another” had occurred through the use of a dangerous weapon. There was direct evidence that the victim’s injuries resulted from the shooting therefore, the State was not required to exclude affirmatively every hypothesis of how the victim could have received his injuries. This assignment of error is without merit.

Assignment of Error VII.

By his assignment of error number seven, the appellant contends he was denied due process because two of his subpoenaed alibi witnesses failed to appear for either day of trial. He points to the failure of the criminal sheriff’s office to find these witnesses as support for his contention.

According to the trial transcript, the defense attorney was informed during the first day of trial that the address of these alibi witnesses given to the criminal sheriff, 2709 Valmont Street, did not exist. After consulting with the appellant, the defense attorney then informed the court that he would provide a man who knew where these witnesses lived to go with a sheriff’s deputy to find these people. The trial was resumed after a break for lunch.

At the beginning of trial the next day, the appellant testified that after trial ended the previous evening he attempted unsuccessfully to locate these witnesses. He did manage to find one of the witnesses early the next morning. The witness apparently was drunk and told the appellant that he could not come to court because he had to take care of something “personally”. The appellant remained with him until time to leave for court. The witness would not give the appellant the address of the other alibi witness. The trial then resumed without objection by the defendant.

A defendant’s right to compulsory process to obtain witnesses in his behalf is guaranteed by both the Sixth Amendment to the United States Constitution and Article I, Section 16 of the 1974 Louisiana Constitution. Article 731 of the Code of Criminal Procedure provides that the trial court “shall issue subpoenas for the compulsory attendance of witnesses at hearing or trials when requested to do so by the state or the defendant.” State v. Latin, 412 So.2d 1357 (La.1982).

Here, the appellant was given the opportunity to subpoena these alibi witnesses. However, the address that he gave the criminal sheriffs office did not exist. Apparently a sheriffs deputy, accompanied by someone supplied by the defense, attempted to find these witnesses on the first day of trial. The appellant himself found one of the witnesses on the second day of trial. However, after notifying the court that the witness refused to come to court, the appellant did not request that the court order the deputies to bring this witness into court. He did not request the issuance of an instanter subpoena. He did not object when the trial was resumed without any further action being taken to secure the presence of this witness. In view of this we conclude that the trial court did not err by proceeding with the trial in the absence of any objection by the defendant. In addition, C.Cr.P. Art. 841 provides that an error not objected to at trial cannot be raised on appeal. This assignment of error lacks merit.

Assignment of Error IX.

By his ninth assignment of error, the appellant contends that the trial court erred by denying his Motion for New Trial based upon the preceding eight assignments of error and the testimony of the appellant’s son (who did not testify at trial).

At the hearing on the Motion for New Trial, the appellant’s son, Herbert Hatten, testified that he was with Ms. Pollard on the evening Curtis Robinson was shot. His testimony paralleled that given by Ms. Pollard in that he testified that Robinson was shot by someone during a drug transaction, but it was too dark to see who the perpetrator was. He also testified that his father knew his whereabouts from the time of the shooting until the time of trial.

Art. 851(3) of the Code of Criminal Procedure mandates that a new trial be ordered where:

New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

In his reasons for denial of the appellant’s motion, the trial judge noted that Herbert Hatten’s testimony was discoverable prior to trial due to the close relationship of Mr. Hatten, his mother, and the appellant. The judge noted that Mr. Hatten’s testimony would not have changed his verdict.

In reviewing a trial court’s ruling on the impact “newly discovered” evidence would have had on the verdict, such ruling should not be disturbed in the absence of a clear abuse of the trial court’s discretion. State v. Chapman, 436 So.2d 451 (La.1983). Here, the trial judge was the fact finder, and his opinion that Mr. Hatten’s testimony would not have changed his verdict cannot be said to have been an abuse of his discretion. The trial court did not err in refusing to grant the appellant’s Motion for New Trial on this ground.

For the reasons discussed above, the appellant’s conviction and sentence are affirmed.

AFFIRMED.

      . R.S. 14:34 defines aggravated battery as a "battery committed with a dangerous weapon.” Battery is defined by R.S. 14:33 as "the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”