
    (106 So. 371)
    No. 24949.
    STANFORD v. BISCHOFF.
    (April 27, 1925.
    Rehearing Granted Nov. 27,
    1925. Rehearing Denied Nov. 30, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    1. Brokers <&wkey;3—One selling or buying leases for another held not to require broker’s license.
    One who buys or sells leases for another is not required to procure a broker’s license, under Act No. 236 of 1920.
    2. Brokers <&wkey;82(I)—Agent purchasing lands need not allege broker’s license in suit for commissions.
    In suit for commissions for purchasing lands, plaintiff is not required to allege procurement of broker’s license under Act No. 236 of 1320; his failure to have license being a matter of defense to be set up and proved by defendant.
    3. Appeal and error <&wkey;l 180(2)—On devolutive appeal from judgment on exception of no cause of action, dissolving attachment, reversal held not to reinstate attachment.
    Where defendant had judgment on exception of no cause of action, attachment was thereby dissolved, and bond theretofore given to release property was canceled, and attachment was not reinstated by reversal on devolutive appeal, in view of Code Prac. art. 259.
    4. Appeal and error &wkey;j843(2)—Constitutionality of statute not involved in appeal, not considered.
    In action for commissions for procuring leases and lands, dismissed on defendant’s exception of no cause of action for failure to allege broker’s license under Act No. 236 of 1920, appellate court in reversing judgment on grounds that license need not be alle'ged will not determine constitutionality of the act.
    O’Niell, C. J., dissenting in part on original healing.
    Thompson, J., dissenting on rehearing.
    Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.
    Action by Jackson Stanford against R. J. Bischoff. From a judgment on exception of no cause of action, plaintiff appeals.
    Judgment annulled and set aside, and case remanded.
    Foster, Looney & Wilkinson, Frank J. Looney, and J. M. Foster, all of Shreveport, for appellant.
    Hall & Bullock and Wilkinson, Lewis & Wilkinson, all of Shreveport, for appellee.
   OVERTON, J.

Blaintiff alleges that defendant employed him to purchase property for him, agreeing to pay for his services certain compensation,- set out in the petition herein. He also alleges that under the contract of employment he secured for defendant the purchase of several leases, which he specifically sets out, and also of certain land, which he describes. He further alleges that under said contract of employment he was forced to examine and investigate some $10,-000,000 worth of property. lie also alleges that defendant has paid him only a part of the commission to which he is entitled, and that there is still due him $9,669.45. He further alleges that defendant, though temporarily present in the parish of Oaddo, is a resident of the state of Illinois, and, because defendant is a nonresident, that he (plaintiff) is entitled to a writ of attachment. The prayer of the petition is that a writ of attachment issue and that_ plaintiff have judgment in the sum above stated.

Defendant appeared and filed an exception of no cause of action.. This exception is based upon the theory that plaintiff cannot recover because he does not allege that he was licensed as a broker at the time he performed the services alleged to have been rendered.

Defendant looks to Act 236 of 1920 to support liis exception. Section 1 of this act reads:

“That it shall be unlawful for any person, firm, association, copartnership or corporation, whether operating under an assumed name or otherwise, from and after January 1, 1921, to engage in the business or capacity, either directly or indirectly, of a real estate broker, a real estate salesman, a business chance broker or curb broker within this state without first obtaining a license under the provisions of this act.”

Section 2 of the act defines a real estáte broker, a real estate salesman, and a business chance broker, and section 19 reads as follows: /

“That any person, firm, copartnership, association or corporation, who has not been licensed in accordance with the provisions of this act, shall not be allowed to recover for any fee, claim or charge for brokerage.”

This act was before us for consideration in the case of Vander Sluys v. Finfrock (No. 26227) 103 So. 730. It was there held that one who effected the sale for another of a mineral lease was not a real estate broker, within the meaning of the act, and therefore could, recover a commission for bringing about the'-sale, though he was not licensed, under the act, as a broker. The ruling ,is equally applicable to one who effects the sale of any other kind of lease for another, or secures the same by purchase for another. However, that case is not wholly applicable to the present one, for the reason that, in the instant case, plaintiff not only secured leases by purchase for plaintiff, but also land. However, it does not follow that, for the reason that he secured land as well as leases by purchase for plaintiff, his petition shows no-cause of action, even as to compensation for ■obtaining the land in that it does not set out that he was licensed under the act as a real estate broker. It was not necessary that Xilaintiff should have made that allegation. If the nature of his services were such as to require that he be licensed, and he was not, that he was not, is a matter of defense, which defendant, in order to avail himself of, must set up and establish.

Defendant urges that, should we overrule the' exception of no cause of action, we should not reinstate the attachment, which plaintiff caused to issue, and under which ■defendant’s property was .seized, for the reason that, when the exception was sustained by the lower court, this necessarily dissolved the attachment; and since the judgment sustaining the exception was appealed from only ■devolutively, the attachment was, as a result, forever dissolved. It may be observed in this connection that this suit is one in personam, and that the attachment is therefore merely an incident of the main action. It may be observed also that the property attached was released on bond while this suit was still pending in the lower court. In our view, the effect of overruling the exception is necessarily to reinstate the proceedings as they existed prior to the sustaining of the exception, where conditions are such that this may be accomplished, and, in this instance, they are such.

For the reasons assigned, the judgment ax>pealed from is annulled and set aside, the exception of no cause of action is overruled, and this case is remanded to the lower court to be proceeded with according to law.

O’NIELL, C. J„

concurs in the decree, but not in the ruling that, when a person sues for compensation for services for which the law requires a license, he need not allege that he had the license.

On Rehearing.

ROGERS, J.

Plaintiff, in his petition, alleged a special contract with defendant, and shows that under said contract he purchased from Allison-Day and Allison Din-gee and others a lease on 80 acres of land for $165,000; also the Barnes lease, containing 80 acres for $60,000, and a %g interest in the two Bristow leases on 88%oo acres, together with an oil well and equipment situated thereon for a total price of $4,289. The, manner of designating the leases, the character of the acreage, the large purchase price paid, for each lease, and the oil .well and equipment on one of said leases, as set forth in the petition, would seem to indicate, without any question of a doubt, that the leases which plaintiff averred he purchased for defendant were oil -leases, and that, therefore; the transactions to which he refers are well within the rule announced in Vander Sluys v. Finfrock (La.) 103 So. 730. But even if the pleader be held to a strict and technical construction of his language, without indulging in any inferences as to the import thereof, and the terms “leases” as used by him be construed to mean ordinary leases affecting the lands involved, nevertheless, in so far as his transactions in said leases are concerned, he is not amenable to the provisions of Act 236 of 1920.

Section 1 of the act prohibits any person from engaging in the business of real estate broker without first obtaining a license as set forth in the statute. Section 2 defines the meaning of a real estate broker. One who buys or sells a lease on any kind of real estate is not comprehended within the definition at all. Since the statute sets forth what is necessary to constitute the business of a real estate broker, plaintiff must be brought clearl$ within its terms before he can be subjected to its provisions.

Plaintiff, in his petition, clearly sets forth a cause of action for compensation for his services in securing the leases for defendant’s account. Nor was it necessary, as we stated in our former opinion, in order to obtain coinpensation for obtaining the land, that plaintiff should have alleged that he was engaged in the business of real estate broker, and duly licensed as such. If he is not entitled to a recovery under this allegation of his petition because he is not a licensed real estate broker, then that fact is a matter of defense which must be set up and proved by the defendant on the trial of the ease.

We think, however, that we were in error in the conclusion which we expressed in our former opinion that the overruling of the exception of no cause of action reinstated the attachment which had been dissolved by the judgment of the district court; in other words, that the effect of the devolutive appeal was to maintain the writ, not withstanding the judgment of dissolution.

In Wade on Attachment, vol. I, p. 294, we find the law, on the subject stated as follows, viz.:

“If an order dissolving the writ of attachment is appealed from, the appeal arrests the right of the owner to reclaim his property, hut this result only follows the perfection of the appeal and taking of such measures as are necessary to render it a supersedeas. Otherwise the officer may restore the property and will be protected against the plaintiff by the judgment of the court even though it has been reversed.” (Writer’s italics.)

And in Watson v. Simpson, 15 La. Ann. 709, which is a case directly in point, this court said, on rehearing:

“The doctrine is well established that ‘pei'sons, out of the state, can only be made amenable to our tribunals by having their property attached. A writ of attachment duly executed stands in the place of a citation.’ Schlatter et al. v. Broaddus et al., 4 Mart. (N. S.) 430; Favrot v. Delle Piane, 4 La. Ann. 584. Hence a writ of attachment is not, in the case of an absentee, a conservatory act, a remedy, incident to a main action, but is, on the contrary, the very foundation of the action, and stands in the place of a citation in ordinary cases. Hence it follows as a natural consequence that an order setting aside an attachment terminates the suit, and is a finality, unless appealed from. ,The operation of such a judgment, whether styled interlocutory or final, can only be stayed by an appeal, as its immediate effect is to cause an irreparable injury to one of the parties (0. P. 566) ; and the fact that the defendant brought himself within reach of a personal judgment by his Appearance does not destroy the effect of the interlocutory judgment, or suspend its operation, unless appealed from within the legal delay.” .

Counsel for plaintiff and appellant argue that, when the defendant caused the attached property to be released on bond, he gave a surety to satisfy any judgment which might be rendered against him, and that, therefore, the bond remains as an existing and valid obligation until the surety shall satisfy the judgment of the plaintiff should he be successful in his suit, or until a final judgment shall have been rendered in favor of defendant dismissing plaintiff’s demand.

The condition of the release bond, which was given pursuant to the provisions of C. P. art. 259, is that the surety will satisfy the judgment to the value of the property attached as may be rendered against the defendant in the pending suit. This language means, as we' construe it, that the surety can only be called on to discharge his obligation in the event the attachment is sustained. It will not be disputed that a personal judgment may be rendered against a defendant while the attachment obtained by the plaintiff may be dissolved. Certainly in a case of that kind the surety cannot be called upon to pay the purely personal judgment.

It is to be observed that the surety’s obligation, under the article of the Code of Practice, is to satisfy the judgment only to the value of the property attached. Obviously, this means the value of the property at the timé the attachment is levied and not at the date of the judgment. The bond simply takes the place of the property released. Benton v. Roberts, 2 La. Ann. 243. It does not bar subsequent proceedings to set aside the writ. Quine v. Mayes, 2 Rob. 510; Bauer v. Antoine, 22 La. Ann. 145; Edwards v. Prather, 22 La. Ann. 334. And defendant, after bonding the attachment, has the right to .have tl}e writ dissolved in order to relieve himself and his surety from the obligation resulting from the bond. Pailhes v. Roux, 14 La. 82. The judgment of the court below in the instant case dissolved the attachment) and the effect of such dissolution was to release the property and to cancel the bond. Bayne v. Cusimano, 50 La. Ann. 361, 23 So. 361. The legal consequences flowing from the rendition of such judgment could have been averted only by the taking and perfecting of a suspensive appeal. The devolutive appeal which was prosecuted by the plaintiff merely implied that defendant had the right to have the judgment appealed from executed, in so far as it was executory, pending the appeal. Bank v. Bellamy Lbr. Co., 140 La. 497, 73 So. 308; McWaters v. Smith, 25 La. Ann. 515.

Since the rehearing was granted herein, plaintiff and appellant has filed in this court a plea attacking the constitutionality of Act 236 of 1920, on which defendant and appellee based its exception.

Pretermitting the question of whether or not this plea is timely filed, we must, nevertheless, decline to consider it, as plaintiff, in so far as the leases are concerned, does not come within the terms of the statute, and he is therefore without any interest or standing to attack its constitutionality-. Vander Sluys v. Einfrock, referred to supra, at page 732 of the opinion as it appears in the Southern Reporter, and the authorities there cited. And it will be time enough to raise the constitutional question in so far as the lands are concerned when, and if, the defense is made in court of the first instance that plaintiff cannot recover on that item of his demand, because of his failure to obtain the license required of real estate brokers under the provisions of the legislative act.

Eor the reasons assigned, it is ordered that our former decree .be amended so as to recognize the fact that its effect is not to revive the writ of attachment and to reinstate the release bond herein, and that as thus amended it be and it is hereby reinstated and made the- final judgment of this court. The right to apply for a rehearing is reserved to the plaintiff.

THOMPSON, J., dissents.

LAND, J., recused. 
      
       158 La. 175.
     
      
       158 La. 175.
     