
    No. 5757.
    THOMAS JOHNSON vs. ANTHONY PUHALOVICH, APPEAL OF W. F. ERNEST.
    Syllabus.
    Where a matter is submitted on rule or exception only, a judgment inadvertently disposing of the whole case on the merits must be set aside, and the cause must be remanded. - ■
    
      Appeal from the Civil District Court for'tile Parish of Orleans, Division “0,” No. 92,555. Hon. E. K. Skinner, Judge.
    Dinkelspi'el, Hart & Davey, for plaintiff and appellant.
    G-. F. Bartley, for defendant and appellee.
   His Honor,

JOHN ST. PAUL,

rendered the opinion and decree of the Court as follows:

This appeal is a sequel to two former appeals token by the same party, Nos. 5373’and 5514 of our docket.

When our latest decree was transmitted to the Court a qua, execution issued and this appellee enjoined the seizure and asked for damages.

There were exceptions filed and a rule to dissolve. On May 31st, 1912, these were tried, argued and submitted, but the evidence was not filed and1 put into the record until October 23rd, five months afterwards. One month later the trial Judge was first able to take the matter up for consideration, and evidently under the impression that the matter was before him on the merits, proceeded to pass upon the case in its entirety perpetuating the injunction and awarding damages for an illegal seizure.

The judgment appears to us as having been rendered inadvertently, and we have no recourse but to set it aside and remand the case for further proceedings.

The transcript shows that no answer was ever filed, and the minute entry of May 31st, 1912, shows that the rule and exception alone were tried and submitted. In that condition of the record a judgment could not be had on 'the merits, involving also a claim for damages. ■

It is therefore ordered that the judgment appealed from be set aside and the case remanded to the Court a qua for further proceedings according to law; costs of appeal to be paid by appellee.

Syllabus.

Former decree reinstated.

Opinion and decree, February 24th, 1913.

Rehearing granted, April 7th, 1913.

Opinion and decree, May 5th, 1913.

Remanded.

Dufour, J., takes no párt.

On Rehearing.

His Honor,

JOHN ST. PAUL,

rendered the opinion and decree of the Court as follows:

Further consideration of this case has satisfied us that our former decree should remain unchanged.. We do not think the case presents any feature requiring us to change the regular order of .costs..

Former decree reinstated.

Dufour, J., takes part in rehearing.  