
    (129 So. 617)
    DENEKAMP v. HEISLER et al.
    No. 30601.
    July 2, 1930.
    Rehearing Denied July 19, 1930. • -
    Herbert W., Kaiser, Thomas Tomeny, and John H. Hajnmel, Jr., all of New Orleans, for applicant.
    Theo. Cotonio, Jr., and Theo. Coton io, Sr., both of New Orleans, for respondents.
   BRUNOT, J.

Mrs.' William E. Heisler purchased a lot of silverware from the plaintiff. There was a balance of $1,332.50 due plaintiff on the account, and this suit is for the recovery of that sum.

The defendants are Mr. and Mrs. Heisler and John D. Nix, Jr.

The petition alleges that a community of .acquets and gains existed between Mr. and Mrs. Heisler, but the sale was made to Mrs. Josephine Heisler, who was conducting a separate business from that of her husband, viz., an apartment hotel. Mrs. Heisler sold the business to John D. Nix, Jr., and for that reason he was cited as a defendant.

All of the defendants filed exceptions of no cause of action. The exceptions were sustained as to Mr. Heisler and John D. Nix, Jr., but overruled as to Mrs. Heisler. The case was tried and judgment was rendered against Mrs. Heisler for $1,332.50 with recognition of the plaintiff’s vendor’s lien upon the silverware sold.. The defendant appealed, and the Court of Appeal found that the purchase was a community debt for which the husband was suable, and it reversed the judgment, but at the same time it sustained the ruling of the lower court maintaining Mr. Heisler’s exception of no cause of action filed in the case. Such a ruling is inconsistent and clearly erroneous; it is therefore avoided, and it is now decreed that the exception of no cause of action filed by Mr. Heisler is overruled and the ease is remanded to the civil district court to be tried against Mr. Heisler as head of the community. The costs of the appeal to be paid by respondents.  