
    In the Matter of the SUCCESSION OF Henry Earl COBB.
    No. 96 CA 1249.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 14, 1997.
    
      Joseph D. Lewis, Baton Rouge, for Defen-danVAppellant Lillian Knight.
    Johnnie A. Jones, Sr., Baton Rouge, for Plaintiff/Appellee Thelma M. Cobb.
    Before LOTTINGER, C.J., WATKINS, SHORTESS, CARTER, LeBLANC, FOIL, GONZALES, WHIPPLE, FOGG, PARRO, KUHN and FITZSIMMONS, JJ., and TYSON, J. Pro Tem.
    
      
       Prior to his death, Judge J. Louis Watkins, Jr. expressed his position of agreement with the majority by letter dated August 12, 1997.
    
    
      
      . The Honorable Ralph E. Tyson, Judge, Nineteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
    
   GONZALES, Judge.

The parties in this case rely upon conflicting First Circuit Court of Appeal cases to support their respective positions concerning the interpretation of La.C.C. art. 203. This court convened en banc to resolve the conflict.

PROCEDURAL HISTORY AND FACTS

Henry Earl Cobb died on June 28, 1992. He was survived by his wife, Thelma M. Cobb, and there were no children born of the marriage. Subsequently, his surviving spouse, Mrs. Cobb, filed an uncontested succession proceeding in the 19th Judicial District Court. On October 9, 1992, the trial court signed a judgment of possession, recognizing Mrs. Cobb as the sole heir of Mr. Cobb and putting her in possession of his estate.

On March 1,1993, Lillian Joy Knight filed a motion to reopen the succession, alleging that she was the natural daughter of Henry Earl Cobb, that she was bom on November 9, 1971, that she had been acknowledged by Mr. Cobb, and that she should be recognized as his heir and put into possession of his estate. Further, on March 1, 1993, Ms. Knight filed a petition for temporary restraining order, asking that Mrs. Cobb be prohibited from in any way adversely affecting Ms. Knight’s interest in the estate of Mr. Cobb.

On June 17, 1993, Mrs. Cobb filed a peremptory exception of prescription, alleging that Ms. Knight had failed to bring a timely filiation action under La.C.C. art. 209, and asking that her suit be dismissed. On November 2, 1993, the trial court dismissed Mrs. Cobb’s exception of prescription.

On December 18, 1995, Mrs. Cobb filed exceptions of no right of action, no cause of action, and prescription. On February 26, 1996, the trial court signed a judgment in favor of Mrs. Cobb, and against Ms. Knight, sustaining the peremptory exceptions of no right and no cause of action and dismissing, with prejudice, the suit filed by Ms. Knight. Ms. Knight is appealing that judgment. She makes the following assignments of error:

1. The Court committed manifest error in granting exceptor’s exception of no right of action where Appellant, LILLIAN JOY KNIGHT, 13is in the particular class to which the law grants a remedy under the circumstances of this case.
2. The Court committed manifest error in granting exceptor, Thelma Cobb’s, exception of no cause of action where Appellant, LILLIAN JOY KNIGHT, has stated a cause of action and a remedy at law in the pleadings filed at the trial level.

Ms. Knight argues that she is the acknowledged child of Mr. Cobb under La.C.C. art. 203; therefore, she is not required to bring a filiation action under La.C.C. art. 209 and the time constraints of La.C.C. art. 209 thus do not apply to her action.

THE APPLICABLE LAW

Louisiana Civil Code article 203 provided at the time Ms. Knight filed her action:

The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of the child.

Louisiana Civil Code article 209 provides:

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 208 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided by this article.
B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages. (Emphasis added.)

In Succession of Alexander, 460 So.2d 19, 21 (La.App. 1st Cir.1984), writ denied, 462 So.2d 652 (La.1985), this court stated:

Article 209 requires “a child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203” to prove filiation. Article 203 provides for acknowledgment by declaration before a notary public and two witnesses by the father and mother or either of them or in the registering of the birth or baptism of the child. The legislature in amending La.Civ.Code arts. 208 and 209 has in essence said that an Article 203 acknowledgment is self proving, whereas any other must be proven in an action to establish filiation. (Footnote deleted.)

Ms. Knight argues that she was acknowledged by her baptismal certificate, on which Mr. Cobb’s name appears as her father.

Mrs. Cobb, arguing that Ms. Knight does not meet the requirements for acknowledgment under La.C.C. art. 203, relies upon Succession of Theriot, 428 So.2d 1017, 1019-20 (La.App. 1st Cir.1983), in which this court held:

We interpret the amended version of La. Civ.Code art. 203 to be fulfilled if the natural parent signs the certificate of birth or baptism as a parent, finding that such signature is tantamount to a declaration of filiation. (Emphasis added.)

Theriot relies upon Stewart v. Parish of Jefferson, 17 La.App. 626, 136 So. 659 (La.App. 1st Cir.1931). In Stewart, this court found that the baptismal certificate, which was filled in by the priest and not signed by the father or mother, was not sufficient to constitute an acknowledgment under La.C.C. art. 203. The Stewart court stated:

It is not pretended that the certificate bears any other signature than that of the officiating priest, and the source from which he derived his information for making it is not given. There is nothing in it which even remotely may be construed as a declaration by the father or mother of this child which the article of the Code requires in order to constitute an acknowledgment.

Support for Mrs. Cobb’s position is also found in Second Circuit Court of Appeal and Third Circuit Court of Appeal cases. The Second Circuit Court of Appeal held in Matter of Succession of Brown, 522 So.2d 1382, 1387 (La.App. 2d Cir.1988) that:

IsUnder the apparent statutory scheme, the birth certificate does not purport to be prima facie evidence of the “fact” of paternity unless it is signed by the father. This conclusion is consistent with the interpretation of [C.C.] Art. 203 that formal acknowledgment by registry of the child’s birth requires the signature of the father.
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We therefore must conclude that the Legislature has intended that the naming of someone as an illegitimate child’s father by others on the birth certificate would not constitute prima facie evidence of the father’s identity in a paternity dispute and would not suffice as a formal acknowledgment or declaration of paternity by the father under [C.C.] Art. 203.

The Third Circuit Court of Appeal stated in Succession of Savoy, 511 So.2d 59, 61 (La.App. 3rd Cir.1987):

It has been established that the fact that others place the name of the father in the birth records of a child is not sufficient to constitute an acknowledgment under article 203. In Re Wildeboer, 406 So.2d 687 (La.App. 2d Cir.1981).
‡ ‡ ‡ ‡ #
Appellant’s argument that informally acknowledged children are not required to comply with LSA-C.C. art. 209 was directly addressed in Succession of Alexander, 460 So.2d 19 (La.App. 1 Cir.1984), writ den., 462 So.2d 652 (La.1985). In Alexander, the court specifically held that informal acknowledgment does not dispense with the action to prove filiation as prescribed by LSA-C.C. art. 209. The court reached a similar result in Matter of Thomas, 450 So.2d 1048 (La.App. 1 Cir.1984), writ den., 457 So.2d 1192 (La.1984), where it held that informal acknowledgment is merely one method of proving filiation, not a means of interrupting prescription.

It is axiomatic that the rationale in the Matter of Succession of Brown and Succession of Savoy cases that the birth certificate should be signed to constitute an acknowledgment under La.C.C. art. 203 should apply also to cases involving the baptismal certificate.

Ms. Knight does not dispute that her baptismal certificate is not signed by Mr. Cobb. Rather, she argues that because he caused his name to be placed on the baptismal certificate (which was filled out by church officials) and attended the baptism ceremony, this is sufficient for an acknowledgment under La. C.C. art. 203. Ms. Knight expressly relies upon Lewis v. Sorrel Electrical Contractors, Inc., 468 So.2d 757 (La.App. 1st Cir.), writ denied, 474 So.2d 1308 (La.1985) as supporting this position.

lein Lewis, Mrs. Lewis filed suit seeking damages for the death of her son, Nelson Lewis, who was killed in a motorcycle accident. After the suit was filed, discovery revealed that Nelson Lewis might have fathered an illegitimate son. Thereafter, the defendants raised an objection of no right or cause of action. Under La.C.C. art. 2315, the son would be the proper party plaintiff in the suit, if he was acknowledged under La.C.C. art. 203. In Lewis, 468 So.2d at 758, this court found as follows:

Plaintiff avers that neither Pinky Mae nor Nelson Lewis signed the document. However, it was revealed to be the common practice for the church secretary to fill in the names of the parents on the certificate. Several witnesses who were present at the christening testified that Nelson Lewis stepped forward and presented himself as the father of Reginald Sam.
The methods of acknowledgment are provided by Louisiana Civil Code Article 203. Article 203 states that an acknowledgment of an illegitimate may be made before a notary and two witnesses, or it may be made by registering the birth or baptism of the child.
The evidence presented at trial was sufficient to show that Nelson Lewis acknowledged Reginald Sam as his child under Article 203. An act whereby a parent announces to the congregation at the child’s christening that he is the parent of that child is one of the situations for which Article 203 was intended to extend. In this instance no more needed be done to acknowledge Reginald Sam as Nelson Lewis’ child.

No authority whatsoever is given by the Lems court for holding that a parent announcing to the congregation at the child’s christening that he is the parent of the child is sufficient to be an acknowledgment under La.C.C. art. 203. Apparently, this holding in Lewis came about as a result of this court straining to find an equitable result in favor of the minor child; nonetheless, this holding is at odds with the prior jurisprudence. We hold today that a baptismal certificate which is not signed by the parent does not comply with the requirements for acknowledgment under La. C.C. art. 203. In so holding, we expressly overrule this court’s contrary conclusion in Lewis v. Sorrel Electrical Contractors, Inc., 468 So.2d 757.

We find that Ms. Knight does not fall within the methods of making an acknowledgment listed in La.C.C. art. 203, because her baptismal certificate was not |7signed by Mr. Cobb. Therefore, Ms. Knight is in the class of persons who must bring a filiation action under La.C.C. art. 209, and the trial court did not err in granting the exception of no right of action and dismissing the suit. The trial court judgment is AFFIRMED. Costs are assessed against Ms. Knight.

CARTER, J., concurs in result only.

LOTTINGER, C.J., and SHORTESS and WHIPPLE, JJ., dissent and assign reasons.

GONZALEZ, J., concurs and assigns reasons.

LOTTINGER, Chief Judge,

dissenting.

I respectfully dissent.

I find nothing in La.C.C. art. 203 which requires the signature of a parent in registering the birth or baptism of a child. At most, any reference in a birth or baptism certificate to the father or mother creates a rebuttable presumption.

II SHORTESS, Judge,

dissenting.

I do not agree with the majority’s holding that a signing is required to comply with La.C.C. art. 203 and registration of baptism.

I respectfully dissent.

WHIPPLE, Judge,

dissenting.

I respectfully disagree with the majority’s holding that a baptismal certificate which is not signed by the parent can never fulfill the requirements for acknowledgment pursuant to LSA-C.C. art. 203. In reaching this conclusion, the majority relies, in part, on cases which held that a birth certificate must be signed by the parent to constitute an acknowledgment under LSA-C.C. art. 203. See In the Matter of Succession of Brown, 522 So.2d 1382, 1385 (La.App. 2nd Cir.1988); Succession of Savoy, 511 So.2d 59, 61 (La.App. 3rd Cir.1987). In relying on these cases, the majority states that it is “axiomatic” that the same rationale should apply to cases involving a baptismal certificate. I disagree.

In Brown, the court held that “[ujnder the apparent statutory scheme,” the birth certificate must be signed by the father to constitute prima facie evidence of paternity. (Emphasis added). Specifically, the court pointed to LSA-R.S. 40:34(B)(l)(a)(iv) (prior to amendment by Acts 1989, No. 819, § 1), which directed that if an illegitimate child was given the natural father’s surname or a combination of the father’s surname and the mother’s maiden name, “the signature of the natural father shall be required on the original certificate of live birth in the space provided for the signature of the parent or other informant.” (Emphasis added). Otherwise, the court concluded, if the parents were not married, LSA-R.S. 40:34 and 40:42 (prior to amendment by Acts 1987, No. 341, § 1) contemplated |2that the identity of an illegitimate child’s father need not appear on the birth certificate. In the Matter of Succession of Brown, 522 So.2d at 1387.

However, our statutory law does not dictate any specific form or requirements for baptismal certificates. Rather, the laws or rules of the particular church will govern the form of and requisite signatures to be placed on the baptismal certificate. Thus, I do not agree that the same rationale applied with regard to formal acknowledgment on the birth certificate should necessarily be applied to baptismal certificates.

In Wells v. White-Grandin Lumber Co., Inc., 13 La.App. 696, 699, 129 So. 171, 173 (La.App. 1st Cir.1930), this court interpreted LSA-C.C. art. 203, as it read prior to amendment in 1979, to require a declaration to be made in connection with the registering of the baptism and, thus, found that C.C. art. 203 contemplated something more than mere oral testimony concerning the baptism, as was presented in that case. In interpreting the requirements of C.C. art. 203, the court stated as follows: “What the law means by a declaration in the registering of the baptism of the child is some kind of record bearing some semblance at least of official approval or authority on the part of those ^empowered to perform the ceremony.” Wells, 13 La.App. at 699; 129 So. at 173. (Emphasis added).

The following year, in Stewart v. Parish of Jefferson Davis (Stewart, Intervener), 17 La.App. 626, 136 So. 659 (La.App. 1st Cir.1931), this court held that a baptismal certificate, whieh listed the names of both parents, but which was only signed by the officiating priest, was insufficient to constitute an acknowledgment under C.C. art. 203. However, this case also interpreted the version of C.C. art. 203 prior to amendment in 1979. Additionally, in reaching this conclusion, the court specifically noted that the source from which the priest derived his information in completing the baptismal certificate was not given. Stewart, 17 La.App. at 627; 136 So. at 660.

In Succession of Theriot, 428 So.2d 1017, 1019-1020 (La.App. 1st Cir.1983), this court interpreted LSA-C.C. art. 203, as amended in 1979, and concluded that it was not necessary under the amended version of the article that there be a declaration made in connection with the baptism. Rather, the court found that the requirements of LSA-C.C. art. 203 would be “fulfilled if the natural parent signs the certificate of ... baptism as a parent, finding that such signature is tantamount to a declaration of filiation.” (Emphasis added). However, while a signature of the natural father on the baptismal certificate would be one manner in which the requirements of art. 203 may be fulfilled, I do not read Theriot as | folding that a signature on the baptismal certificate is the only way that the requirements of art. 203 may be fulfilled.

In Theriot, the court found the evidence therein to be insufficient to prove acknowledgment, noting that the baptismal document filed into evidence was not actually a certified baptismal certificate, but merely an abstract-like document stating that the child was in fact baptized on a certain date in a certain church. The court also noted that the alleged father’s name did not even appear on that document. Succession of Theriot, 428 So.2d at 1020 & n. 1.

However, in Lewis v. Sorrel Electrical Contractors, Inc., 468 So.2d 757 (La.App. 1st Cir.), writ denied, 474 So.2d 1308 (La.1985), which dealt with a baptismal certificate listing the father’s name but not signed by the father, this court was presented with sufficient evidence to establish acknowledgment at the baptism of the child. The evidence established that the father had acknowledged paternity at the baptismal ceremony and had caused his named to be entered upon the certificate. Additionally, evidence was presented to establish that it was common practice for the church secretary to fill in the names of the parents on the certificate, rather than for the parents to fill in or sign their names. Lewis, 468 So.2d at 758.

Thus, I believe that where, in addition to a baptismal certificate listing the name of the illegitimate child’s father, other evidence is presented to establish an acknowledgment pursuant to LSA-C.C. art. 203, this court should consider the totality of the evidence to determine whether that evidence is sufficient to establish that the father formally held himself out as the father of the illegitimate child at the baptismal ceremony. In making this determination, consideration should be given to the particular facts regarding the alleged father’s actions at the |sbaptismal ceremony and to the rules or practices, if any, of the particular church regarding a declaration of paternity during the baptismal ceremony by the father of an illegitimate child, as well as rules or practices regarding signatures required or allowed on the actual certificate. Otherwise, under the majority’s holding, an illegitimate child baptized in a church that does not offer the parents the opportunity to sign the certificate of baptism would be precluded from ever establishing acknowledgment of paternity through a certificate of baptism pursuant to LSA-C.C. art. 203.

In the instant case, Ms. Knight attached her baptismal certificate, listing Henry Cobb as her father, to her motion to reopen succession, and she avers that Cobb was present at the baptismal ceremony, held himself out as her father and had his name placed on the baptismal certificate as her father. At the hearing on the exceptions, Ms. Knight offered the testimony of a Roman Catholic priest to establish that in the Catholic Church, the faith into which she was baptized, the parents of the child baptized do not sign any document in connection with the baptism. The priest testified that the church officials place the parents’ names on the baptismal certificate, rather than the parents signing the certificate. Thus, I believe that the trial court erred in finding that plaintiff was not within the class of persons to whom the law grants the remedy being sought and that she had not stated a cause of action.

Accordingly, I respectfully dissent.

GONZALES, Judge,

concurring.

I write separately to address the dissenting opinion by Judge Whipple and to address the vagueness of La.C.C. art. 203. It is significant that three judges of this Court disagree with the majority’s interpretation of this civil code article. The problem is the legislation itself and the solution lies with the legislature.

The fundamental issue in this case is interpretation of the language in La.C.C. art. 203, wherein the legislature has stated that a formal acknowledgment of an illegitimate child “may be made in the registering of the birth or baptism of such child.” The majority opinion and other cases cited therein state that “registering” means “signing.”

Where legislation is vague, as is the case in La.C.C. art. 203, it opens the door for the court to clarify the legislation. The majority’s determination that “registering” means “signing” is a determination that imposes a relatively high degree of proof upon the person attempting to prove formal acknowledgment. It eliminates the possibility of oral testimony about things that were said or done at the baptism of the child and it requires an act that must be contemporaneous with the events. A more liberal interpretation of La.C.C. art. 203 is espoused by Judge Whipple in her dissenting opinion. She suggests a “totality of the circumstances” approach which would allow a lesser degree of proof about the events surrounding the baptismal ceremony. This approach is used in La.C.C. art. 209, which allows proof of filiation by “a preponderance of the evidence in a civil proceeding.” However, La.C.C. art. 209 places an important limitation on the filiation action, stating in part, “The proceeding required by this article must be brought within one year of the death of the alleged parent or . within nineteen years of the child’s birth, whichever first occurs.” If this court opened La.C.C. art. 203’s formal acknowledgment |2to a “totality of the circumstances” test, many problems could arise because there is no time limitation for claims brought under La.C.C. art. 203.

Requiring a person to make a declaration before a notary and two witnesses, as in La.C.C. art. 203(A), produces a document that has high evidentiary value. Since “registering of the birth or baptism” is an alternative method of formal acknowledgment given in La.C.C. art. 203(A), that process should produce an equally high quality of evidence. It is not logical to have disparate methods of formal acknowledgment. The signing of the birth or baptismal records by a parent in a capacity identified as such comes closer to the authentic act from an evidentia-ry point of view.

Kathryn Shaw Spaht, a noted authority in the area of family law, has observed: “Yet, even in the United States Supreme Court decisions, the interest the state has in the quality of proof necessary to establish filiation has been recognized as important, particularly in view of the problems of stability of land titles and stale or spurious claims.” K.S. Spaht, 41 La.L.Rev. 372, 382, Developments In The Law 1979-1980. (Footnote omitted.) As stated above, determining the quality of proof the legislature intended to apply to La.C.C. art. 203 is problematic because of the use of the word “registering.” The phrase “registering of the ... baptism” is imprecise. The legislature should amend La.C.C. art. 203 to provide that formal acknowledgment via baptism records means that the baptism records must be signed, contemporaneously with the events, in a place and manner clearly indicating the parental relationship. 
      
      . We note that La.C.C. art. 203 was amended by Acts 1995, No. 425, section 1, to add the following:
      B. (1) An acknowledgment by notarial act is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity.
      
        (2) An acknowledgment by registry creates a presumption of paternity which may be rebutted if the alleged father proves by a preponderance of the evidence facts which reasonably indicate that he is not the father, provided such facts are susceptible of independent verification or of corroboration by physical data or evidence.
     
      
      . At the time Stewart was decided, La.C.C. art. 203 read as follows:
      The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.
     
      
      . We note that after suit was filed in the Lewis case, La.C.C. art. 209 was amended to provide an exception for La.C.C. art. 2315 plaintiffs. La. Acts 1984, No. 810, § 1.
     
      
      . We note that, although Ms. Knight has not brought a filiation action, any such action would be barred by the time limitation set forth in La.C.C. art. 209, because she failed to bring such action within one year of the death of Mr. Cobb or within nineteen years from her birth.
     
      
      . The pleading sets out a cause of action because both Lewis and Theriot were the law in this circuit. Deeming Ms. Knight’s well pleaded facts as true, her petition states a cause of action under Lewis.
      
     
      
      . Additionally, I note that LSA-R.S. 9:422.14, prior to its repeal by Acts 1991, No. 235, which enacted the Louisiana Children’s Code, provided that the father of an illegitimate child, in order to object to the adoption of the child, could acknowledge the child either by signing the application for the child’s birth certifícate and by having inserted on the application his name in the space designated "name of child’s father” or by executing and recording an authentic act of acknowledgment. Prior to amendment in 1987, this provision required that the father sign the actual birth certificate.
      Also, in 1995, the legislature added LSA-R.S. 40:46.1, which provides a specific method by which a father may make a voluntary acknowledgment of paternity immediately before or after the birth of the child. This voluntary acknowledgment requires the signature of both parents. LSA-R.S. 40:46.1(E).
     
      
      . Prior to amendment by Acts 1979, No. 607, § 1, LSA-C.C. art. 203 read as follows:
      The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child. (Emphasis added).
     
      
      . As amended by Acts 1979, No. 607, § 1, LSA-C.C. art. 203 provided as follows:
      The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child. (Emphasis added).
      This language has been carried forward in the present version of LSA-C.C. art. 203.
     
      
      . Although evidence may not be introduced to support or controvert the exception pleading the objection of no cause of action, evidence is admissible in considering the objection of no right of action. LSA-C.C.P. art. 931.
     
      
      . This area of the law was heavily amended in the late 1970's and early 1980’s, and much of the amending was done at the instance of the Louisiana Law Institute. These amendments were prompted, of course, by significant court actions, such as Succession of Brown, 388 So.2d 1151 (La.1980), Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). The Lalli court, in fact, opened the door for the time limitation placed on these claims in La.C.C. art. 209 when it said "Because of the particular problems of proof, spurious claims may be difficult to expose." Lalli v. Lalli, 439 U.S. at 271, 99 S.Ct. at 526. It is this important state interest that allowed the time limitations of La.C.C. art. 209 to pass constitutional scrutiny.
     