On Rehearing.
Counsel for defendant, Narvis J. Lee,, correctly points out in application for rehearing that the only issue before this court on original hearing ■ hereof related to the correctness,- vel non, of the ruling of the lower court in sustaining defendant’s exception of no cause and no right of action to the alternative demands of the in-tervenor, John Thomas Adams. It necessarily follows that the ruling of this court in rendering judgment on the merits is erroneous and should be set aside, permitting the entry of a proper judgment remanding the cause for trial on the issues presented by intervenor’s alternative demand.
While we were completely cognizant of the technical limitation upon this court which would have restricted it to the action above noted, we were impressed with the fact that a pronouncement upon, the merits would eliminate further and, as we felt, unnecessary delays in an already protracted course of litigation which has involved the attention of both trial and appellate courts over a period of almost four years. As indicated in our opinion on original hearing, we believed such a pronouncement to be justified on the face of the pleadings themselves. Since, however, it appears that this action is objectionable to counsel for defendant, and in.view of the fact that his position is technically correct;
It is accordingly ordered, adjudged -and decreed that the judgment of this court rendered on the 26th day of January, 1954, be and it is hereby annulled and set aside and there is now judgment in favor of the intervenor-appellant, John Thomas Adams, annulling and setting aside the judgment of the district court, sustaining the exception of no cause or right of action filed on behalf of the defendant, Lee, and there is further judgment, remanding 'this cause to the Honorable the First Judicial District Court in and for Caddo- Parish, Louisiana, for trial, on the merits. Costs of this appeal-are taxed against defendant-appellee, Narvis J. Lee, and all other costs are to await final .determination hereof.