[2] Our decree overruling the exception of no right of action and dismissing the suit as in case of non-suit was predicated on the record, which stated that plaintiff had completed taking testimony and closed his case. In application for rehearing plaintiff says he had not closed his case and was prevented from offering further testimony by the judge sustaining the exception. Attached to the motion is a certificate of the minute clerk confirming what he says, and counsel for defendant has admitted the correctness of plaintiff's contention.
In view of this, we believe the ends of justice will be better served by remanding the case for further proceedings, and accordingly a rehearing is granted and our former decree is recalled, and there is now judgment overruling the exception of no right of action and remanding this cause to the lower court for further proceedings according to law and consistent with the views herein expressed. Defendant-appellee to pay the costs of this appeal. All other costs to await the final determination of this cause. *Page 83