
    In re Timothy R. ROCHESTER v. Albion B. CROSS, Jr., M.C.
    No. 90-CC-0669.
    Supreme Court of Louisiana.
    May 11, 1990.
   In re Cross, Albion B. Jr., M.C.; — Defendants); Applying for Supervisory and/or Remedial Writs; Parish of East Baton Rouge 19th Judicial District Court Div. “L” Number 339,913; to the Court of Appeal, First Circuit, Number CA89 1864.

Denied.

MARCUS and LEMMON, JJ., concur and assign reasons.

MARCUS and LEMMON, Judges,

concurring.

When there is no factual dispute and a reversal of an interlocutory judgment would terminate the litigation, an application for supervisory writs from an interlocutory judgment should be granted if it appears from a consideration of the merits of the application that the ruling complained of may be wrong. Herlitz Construction Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

In the present case the court of appeal correctly treated relator’s appeal from an interlocutory judgment as an application for supervisory writs. The court then denied the application, noting that relator had an adequate remedy by appeal. We take this to mean that the court of appeal considered the merits of the application and declined to exercise supervisory jurisdiction because it did not appear to have merit, but reserved relator’s right to reraise the prescription issue on appeal. However, if the court had refused to consider the merits of the application on the basis that the prescription issue can be raised on appeal, we would remand and order consideration of the merits under Herlitz Construction.  