Guaranty Bank & Trust Co. of Alexandria v. C & R Development Co. , 1971 La. App. LEXIS 6225 ( 1971 )

HOOD, Judge.

This suit was instituted by Guaranty Bank & Trust Company of Alexandria, Louisiana, against C & R Development Company, Inc., and Robert E. Clark. Judgment on the merits was rendered by the trial court, and plaintiff Guaranty Bank & Trust Company appealed. After the case was argued and submitted, we rendered judgment on November 2, 1970, affirming the judgment of the district court, in part, and reversing it, in part. See Guaranty Bank & Trust Company of Alexandria v. C & R Development Company, 241 So.2d 14 (La.App.3rd Cir.1970).

Following that decision, a writ of cer-tiorari was granted by the Louisiana Supreme Court, and thereafter, on January 27, 1971, judgment was rendered by that court setting aside the judgment which we had rendered previously and ordering that the case be refixed on our docket for argument, submission and decision. See Guaranty Bank & Trust Company of Alexandria v. C & R Development Company, La., 242 So.2d 885 (1971).

After the last mentioned judgment was rendered, the case was refixed on our docket for argument, submission and decision, all in accordance with the mandate and orders of our Supreme Court, and in due course it was argued and submitted. It is now before us for decision on its merits.

After considering the evidence and the arguments and briefs of counsel, we have concluded that the case was decided correctly in the judgment which we rendered on November 2, 1970. For the reasons which we assigned at that time, therefore, we re-affirm the conclusions which we reached in that earlier decision, and we hold that judgment must be rendered as set out in our original opinion. Guaranty Bank & Trust Company of Alexandria v. C & R Development Company, La.App., 241 So.2d 14.

For the reasons herein assigned, therefore, we affirm that part of the judgment appealed from which is in favor of Guaranty Bank & Trust Company of Alexandria and against E. Cecil Wiley, in his capacity of Trustee for C & R Development Company, Inc., and Robert E. Clark, jointly and in solido, in the amount of $1,840.30, together with interest thereon at the rate of 8 percent per annum from May 1, 1968, until paid, and 10 percent of the aggregate of principle and interest as attorney’s fees. We, however, reverse all of the remaining parts of the judgment appealed from, including particularly that part which condemns Guaranty Bank & Trust Company to pay to E. Cecil Wiley, Trustee, the sum of $12,502.41, with 5 percent per annum interest thereon from date of judicial demand until paid. All costs of this suit, including those incurred in the trial court and on appeal, are assessed to E. Cecil Wiley, as and in his capacity as Trustee of C & R Development Company, Inc.

Affirmed in part and reversed in part.

FRUGÉ, J., dissents and agrees with Judge CUTRER’S dissent on previous hearing.

CUTRER, J., dissents for the reasons assigned in his original dissent.

SAVOY, J., dissents being of the opinion that the judgment of the District Court is correct.

Rehearing denied.