On the Merits.
By Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ. ST. PAUL, J.On February 20, 1920, plaintiff attached defendant’s property as a nonresident, and served him through a curator ad hoc.
On March 1, 1920, defendant appeared by his attorney and excepted that the petition disclosed no cause of action likewise that the suit was prematurely brought, and also moved to increase the amount of the attachment bond. '
On April 10th defendant moved to dissolve the attachment on the ground that defendant was not cited, because the citation and writ of attachment (the foundation of the suit) were not affixed to the courthouse door as required by Code of Practice, art. 254.
On May 6th the exceptions, etc., were “taken up argúed and submitted.”
On June 28th the exceptions of no cause of action was maintained, the writ of attachment was dissolved, and the suit was dismissed, with $250 attorney’s fees to defendant for dissolving the writ; all in one judgment. And plaintiff appeals.
I.
In First National Bank v. Johnson, 130 La. 288, 57 South. 930, it was said:
“The rule is that an appearance to the suit, except for the purpose of objecting to the jurisdiction, or to the process or citation, subjects defendant to the jurisdiction of the court.”
See, also, Williams v. Commission Co., 45 La. Ann. 1013, 13 South. 394; Elder & Davis v. Ludeling, 50 La. Ann. 1077, 23 South. 929; Martel Syndicate v. Block, 154 La. 869, 98 South. 400 (and authorities there cited).
We are therefore no further concerned with the dismissal of the suit for want .of citation, as in Watson v. Simpson, 15 La. Ann. 709.
It may be that the appearance of the defendant did not cure the defective attachment, and that defendant had still the right to move to dissolve it without going into the merits of his exceptions aforesaid (Elder & Davis v. Ludeling, 50 La. Ann. 1077, 23 South. 929); but the fact is that this defendant did not do so, but on the contrary submitted the whole at one time; and both suit and attachment were dismissed in one and the same judgment as aforesaid.
*17This, however, has no other bearing on this ease than on the question of attorney’s fees. For with the dismissal of the suit the attachment falls of itself; and, as hereinafter said, we are of opinion that the exception of no cause of action was properly maintained by the trial judge.
But whenever an attachment or other conservatory writ is dissolved after hearing the merits, or so that it is impossible to differentiate between the attorney’s services for dissolving the attachment and those for defending the suit, such attorney’s fees cannot then form an element of the damages to be allowed for the wrongful issuance of the writ, “for to do so would be to allow the fees virtually for defending the suit on the merits, which is not permissible.” Three Rivers Oil Co. v. Laurence, 153 La. 224, 231, 95 South. 652.
We therefore conclude that, although the services of counsel for defendant seem well worth the $2’50 allowed by the trial judge and the additional $250 claimed in this court, nevertheless we cannot allow them against the plaintiff, but counsel must look to his own client alone for compensation herein.
II.
As to the exception of no cause of action: The trial judge has thus stated and disposed of the issues thereby raised, and we now adopt his opinion as our own, to wit:
Defendant is the owner of a large tract of timber land in the parish of St. Landry. On the 25th of September, 1919, his agent wrote to the plaintiff, giving him an estimate of the timber on this tract. This letter is made a part of plaintiff’s petition. We find therein these words: “No option or exclusive agencies are given covering this property.” Upon the receipt of this letter plaintiff sent his timber estimator, or land man, Mr. Peacock, to Melville, for the purpose of looking over this land. The agent, Peacock, upon receipt of a letter from Mr. E. T. Sellew. wrote to this latter party, giving him all the details, descriptions, and advantages the land possessed.
The petition avers that this Mr. Sellew was very much interested in the property, arranged with Peacock to meet him at Melville and look over the land; that with a view and purpose of defeating the right of plaintiff to obtain a commission on the sale of said property, and to obtain it at a lower price, than plaintiff was authorized to make, the said Sellew, acting in bad faith, turned over the information received by him, and especially the letter of said Peacock of date 12/23/19 to bis partners O. T. Whitman and L. J. Machen, who together with H. A. Morrison, an associate of said parties and closely identified with said Whitman Lumber Company as its financial agent and banker, went to Melville, La., without the knowledge of the plaintiff or his agent, Peacock, who, at the time was on the ground at Melville awaiting the arrival of. the said Sellew for the purpose of showing said property to him, and said Whitman, Machen, and Morrison, after making inquiries of Hawthorn, representative on the ground of said Swift, and from him verifying all the information given by Peacock to Sellew with reference to said property, and having concluded to purchase same, left Melville and went to Chicago and there, through the collusive interposition of one MeVay and one Robinson, who were represented as real estate agents and dealers, through whom the said property was brought to their attention, concluded a contract of sale with the said Swift under and by which the said parties agreed to buy said property and said Swift agreed to sell the same at the price given to plaintiff by said Swift, and on which contract $10,060 was deposited as earnest money.
The petition further avers that the action of the said Sellew, Whitman, Machen, and Morrison in undertaking to go around plaintiff and fraudulently defraud him of his right to a commission on said property was in bad faith and the result of the collusion between them for the reason the said Sellew is interested in said deal and all of the said parties contemplate the organization of a corporation or partnership for the handling and operating said property so purchased by a part of them and the method of. consummating said deal and taking title thereto, as plaintiff is informed, in the name of H. A. Morrison, so as to nominally exclude the said Sellew from said transaction, was but a fraudulent and collusive scheme on the part of said parties to attempt to defeat the rights of plaintiff to his commission in the premises and acquire said property at a smaller figure by collusively agreeing with the said MeVay and Robinson to reduce the commission *19or share the same with them in the event the deal was consummated and said Swift willing to pay a commission to said MeVay and Robinson for procuring said purchasers.
This is the gravamen of plaintiff’s complaint against defendant. It is nowhere .alleged %n this petition that the defendant was a party to any of these wrong doings on the part of those parties, or that he had Imowledge that MeVay and Robinson to whom he had agreed to ■pay a commission for the sale of the property, had obtained any information from the plaintiff or his representative, upon which to base their offer to him.
Not having coivnected the defendant with any of these uyronged by any of the alienations in this petition, the cowrt mast sustain the exception of no right or eaase of action.” (Italics ours.)
Decree.
The judgment appealed from is therefore amended by striking therefrom the allowance for attorney’s fees, and, as thus amended, it is affirmed; defendant to pay costs of appeal and plaintiff to pay costs of the lower court.
Rehearing refused by Division B, composed of DAWKINS, LAND, and LEOHE, JJ.