
    5287.
    (Court of Appeal, Parish of Orleans).
    NORTH BIRMINGHAM FIRE BRICK AND ROOFING COMPANY vs. W. T. CAREY & BRO., ET AL.
    Where an exception of no cause of action is based on defective pleadings-, the judgment should be one of non-suit only; but the. plaintiff will be taxed with all the costs.
    Appeal from the Civil District Court, Division “B.”
    T. M. & J. D. Miller, for plaintiff and appellant.
    Rouse, Grant & Grant, and P. M. Milner, for defendant and appellee.
   ST. PAUL, J.

Plaintiff seeks to hold (among others) the surety on a contractor’s bond. The surety pleads that the petition shows no cause, of action, for this, that it contains no allegation that a sworn account was served upon the owner as required by Act 134 of 1906.

The exception, is insisted upon and seems well, taken. The act requires that an attested account he served in all cases, and this is for the protection of all parties interested.

May 29, 1911.

The exception must, therefore, he maintained; hut in as much as counsel claims that such account was in faet served, and the omission to make the allegation was mere oversight, the suit should not he dismissed except as in case of non-suit; for a litigant should not be made to suffer for defective pleadings.

The other issues need, therefore, not he considered.

But we think that plaintiff should hear the costs of appeal.

(See South La. Land Co. vs. Waterhouse, 128 La. [54 So. Rep. 940], 942).

It is, therefore, ordered, that the judgment appealed from be amended so as to dismiss plaintiff’s demand against the National Surety Co., “as in case of non-suit only” instead of absolutely, and as thus amended; said judgment is affirmed at the cost of appellant.  