
    No. 11,631
    Orleans
    MATHES v. GAINES
    (October 20, 1930. Opinion and Decree.)
    Godchaux, Milling, Saal & Milling, of-New Orleans, attorneys for plaintiff, appellee.
    Thomas Gilmore, of New Orleans, attorney for defendant, appellant.
   ON REHEARING

JANVIER, J.

A careful reconsideration of this matter convinces us of the correctness of our original opinion, 127 So. 408, which was to the effect that there was no evidence before the district court, or before us¡, to sustain the contention of the defendant that the contract for the sale of the real estate in .question was obtained through fraudulent representations, or through fraudulent failure to disclose facts known to the agent. In our original decree we came to this conclusion, but felt that the ends of justice required that the matter be remanded to the district court to the end that evidence in support of the suggested defense might be introduced, if available. On reconsideration we are convinced that it would be unfair to remand the matter inasmuch as defendant had every opportunity on the original trial to introduce any evidence available and none was forthcoming. The result of the remanding of the case would be that the appeal bond would be cancelled and, since the defendant has since died, it is possible that a judgment, if rendered against her, or her heirs later, could not be collected.

By motion of Albert W. Newlin, public administrator for the parish of Orleans, we are advised that the defendant has died since the rendering of the judgment appealed from, and, by appropriate order, the said Newlin, as administrator of the succession of the said Fannie Gaines, has been made party defendant.

It is therefore ordered, adjudged, and decreed that the original decree rendered by us be and it is recalled and annulled, and it is now ordered that the judgment appealed from be amended so as to read against Albert W. Newlin, administrator of the succession of Fannie Gaines and, as thus amended, it is affirmed at the cost of appellant.  