On Application for Rehearing.
The judgment rendered herein dismissing the suit is not to be construed as terminating the controversy. Plaintiff remains at liberty to begin new proceedings.
The non-suit is intentional. Remanding the case for the purpose of making a new party would not practically have availed the plaintiff, who, if he have legal grounds of complaint, should present them under another phase, a new material fact to occur, intervening, to serve as a solid foundation for an action, with which the parties *880named in the pretended contract could be legally connected, so as to have the differences between plaintiff and them finally adjudicated upon.
It may be that the non-joinder, on which the opinion is based, was not urged in limine. The attention of the court was called to it. Whether this was done in the brief or in oral argument is immaterial, for the reason that the court could have noticed it, proprio motu, and ruled as it has.
Rehearing refused.