
    No. 2859
    Second Circuit
    BREAZEALE v. PETERS
    (November 10, 1927. Opinion and Decree on Rehearing.)
    (Previously reported in 6 La. App. 676.)
    
      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal — Par. 566; Pleading — Par. 62, 71.
    Where defendant filed an exception no cause of action in the lower court but does not appeal or answer the appeal, the exception will not be considered in the appellate court unless an exception no cause of action is filed there.
    Appeal from the First Judicial District Court of Louisiana, Parish of Bossier.
    Action by W. O. Breazeale against Joe Peters.
    Former judgment reinstated on rehearing.
    Robert Roberts, Jr., Frank A. Blanchard, of Shreveport, attorneys for plaintiff, appellant.
    Harry V. Booth, of Shreveport, attorney for defendant, appellee.
   ON REHEARING

Per curiam:

We granted a rehearing in this case, not because we were in doubt about the correctness of our ruling on the exception of no cause of action, but because we reached the conclusion that we could not consider the lower court’s ruling on the exception as defendant did not appeal nor answer the appeal.

See Siragusa vs. Ill. Cent. R. R. Co., 152 La. 745, 94 So. 376.

However, defendant has filed in this court an exception of no cause of action, and that exception is now before us.

Code of Practice, Art. 346.

State vs. Winehill & Rosenthal, 147 La. 781, 86 So. 181.

A reconsideration of the case has not changed our views. We think the exception of no cause of action is well founded and should have been sustained by the lower court.

It is accordingly ordered and decreed that our former judgment be reinstated and made the final decree of this court.  