ON REHEARING.
ODOM, J.The issues in this case, as disclosed by the pleadings, were set out in our original opinion. In passing upon the case, we considered only the issue as finally presented to the District Court, but overlooked entirely that the Court had sustained an exception of no cause of action to the plaintiff’s main demand, which was to be recognized as and decreed to be the owner of the automobile under the conditional sale contract made in Mississippi, which state recognizes such contracts.
Plaintiff’s petition unquestionably discloses a cause of action on the main demand. Plaintiff alleged that the automobile was sold by the James Motor Company, in the State of Mississippi, to Phares, on terms of credit under a contract which specifically provided that, “title to said property shall not pass to the purchaser until the amount is fully paid in cash,” and that the purchaser “shall not remo.ve same from the state without permission of the seller; shall not transfer any interest in this contract or said property;” and it alleged that the balance due on the purchase price of said car had not been paid and that the purchaser had removed the car from Mississippi to the State of Louisiana without permission of the seller and had there disposed of it; and in Article IV of the petition it is alleged:
“That under the laws and adjudications of the State of Mississippi, conditional sales contracts are recognized and ordered enforced, under which the holder thereof retains the title to the personal property with reference thereto, and described therein, until the full purchase price is paid and discharged, and the holder of said instruments are the lawful owners of said property, which laws and adjudications your petitioner specifically pleads.”
See Securities Sales Co. vs. Blackwell, 167 La. Rep —; 9 La. App. 651; 120 So. 45.
Plaintiff asked that it be decreed the owner of the car and that was its main demand. The Court below was of the opinion that plaintiff’s petition did not set out a cause of action in that respect. The Court erred in so holding.
Plaintiff asked, in the alternative, in case the Court should hold that it was not the owner of the car, that it be decreed to have a privilege thereon for the unpaid balance of the purchase price, and the Court held that it had none, and we sustained that view and affirmed. the judgment. But, as stated, we overlooked, the fact that the Court had sustained the exception of no cause of action and that plaintiff had reserved a bill to the Court’s ruling and had brought that ruling up for review.
For the reasons assigned, it is now ordered, adjudged, and decreed that the judgment of the lower court sustaining the exception of no cause of action be reversed and that said exception be and the same is now overruled; and further ordered that this case be remanded to the lower court and reinstated on the docket thereof to be proceeded with in accordance with the views herein expressed, with permission granted plaintiff to introduce all testimony relevant to the issue of ownership of said automobile; costs of appeal to.be paid by appellee; all other costs to await final results.