Opinion
No. 83-74.
May 25, 1983.
APPEAL FROM SEVENTH JUDICIAL DISTRICT COURT, CATAHOULA PARISH, STATE OF LOUISIANA, HONORABLE RICHARD P. BOYD, JR., J.
Reeves Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellee.
Ralph W. Stephenson, Jr., Baton Rouge, for plaintiff-appellee.
Before GUIDRY, STOKER and LABORDE, JJ.
The defendant, State of Louisiana, Department of Public Safety, appeals from a judgment granting plaintiff a restoration of his suspended driving privileges. We reverse.
Plaintiff's action is based on LSA-R.S. 32:415.1 A(1), which reads in pertinent part as follows:
" § 415.1 Economic hardship appeal of driver's license suspension
"A. (1) Upon suspension, revocation, or cancellation of a person's drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family."
Plaintiff failed to allege in his petition that the suspension complained of is his first suspension, which is requisite for stating a cause of action under the above statute. Mango v. State of Louisiana, Through the Department of Public Safety, 425 So.2d 350 (La.App. 3rd Cir. 1982). It is apparent from the trial record that plaintiff could not have truthfully alleged that this was his first suspension in view of his proven record of previous suspensions.
An appellate court may, on its own motion, notice the failure of a petition to state a cause of action. C.C.P. Art. 927. We conclude that plaintiff's petition fails to state a cause of action and accordingly the judgment appealed from should be reversed and plaintiff's suit ordered dismissed.
For the reasons assigned, the judgment of the trial court is reversed and the petition for restoration of restricted driving privileges is dismissed. Costs of this appeal are assessed against appellee, Johnny Ray Taylor.
REVERSED AND RENDERED.