(66 South. 854)

No. 20175.

#### COMMERCIAL NAT. BANK v. SANDERS et al.

(Dec. 14, 1914.)

*(Syllabus by the Court.)*

1. Appeal and Error @=>1195 — Remand — Law oe Case.

The defendants filed exceptions of no cause of action, which were overruled. They then filed exceptions of no *right*of action, which were sustained, and the suit was dismissed. On appeal, the judgment was reversed and the case was remanded, to be proceeded with according to *227law. Another judge having been elected to the district bench, the defendants filed another exception of no cause of action, which was sustained, and the plaintiff’s suit was again dismissed. *Held,*the district judge should not have given consideration to another exception of no cause or right of action when it had been finally decided that the plaintiff’s petition disclosed a cause and right of action.

[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § <@=>1195.]

*(Additional Syllabus by Editorial Staff.)*

2. Bills and Notes <§=>408 — “Protest.”

“Protest” implies a demand and nonpayment or dishonor of the note.

[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1019-1021, 1113-1128; Dec. Dig. <§=3408.

For other definitions, see Words and Phrases, First and Second Series, Protest.]

Appeal from Twelfth Judicial District Court, Parish of Vernon; James G. Palmer, Judge.

Action by the Commercial National Bank against W. J. Sanders and others. From judgment for defendants, plaintiff appeals.

Reversed and remanded.

Alexander & Wilkinson and Sidney I. Foster, all of Shreveport, for appellant. Honk & O’Neal, of Leesville, for appellees.

O’NIELL, J.

The defendants were sued as indorsers of a promissory note drawn by a corporation styled Powell Bros. & Sanders.

The petition recites that the defendants guaranteed the payment of the note and waived demand, protest, and notice of protest. The note is annexed to and made part of the petition. It contains this clause, “I or any indorser hereof waive demand, protest and notice of protest,” and bears the certificate of a notary public that it was duly protested for nonpayment on the day of its maturity.

Two of the five defendants filed pleas to the jurisdiction of the court, which were maintained, and the suit against them was dismissed.

The other three defendants filed exceptions of no cause of action, which were overruled. They then excepted to the suit on the ground that the plaintiff had no *right*of action. This latter exception was sustained, and the suit was dismissed by the district judge. On appeal to this court, the judgment was reversed and the case was remanded, to be proceeded with according to law. 132 La. 174, 61 South. 155. The defendants thereafter filed a plea of novation which, with their consent, was referred to the merits. They then filed an answer, they and the plaintiff obtained orders to take depositions under commission, and the case was fixed for trial and afterwards continued to a later date.

Thereafter, another judge having been elected to the district bench, the defendants filed another exception of no cause of action, which was sustained, and the plaintiff’s suit was again dismissed. The plaintiff has again appealed.

Opinion.

[1] When this case was remanded to the district court, the judgment on the exceptions of no cause or right of action was final; and the suit shoul'd have been disposed of upon its merits, or upon some other plea than that of no cause or right of action.

[2] It has been decided by the judgments heretofore rendered in this case that the allegations of the plaintiff’s petition, with the documents annexed thereto, are sufficient to admit of proof that the defendants were notified of the protest (which technically implies a demand and nonpayment or dishonor) of the note, or that they waived the notice of dishonor. The defendants did not answer the former appeal, and there was no reversal of the first ruling, overruling the exception of no *cause*of action. On the contrary, the judgment sustaining the exception of no *right*of action was reversed, and the exceptions of no cause or right of action were thus finally disposed of.

*229The judgment appealed from is set aside and reversed at the cost of appellees, and the case is again remanded to the district court, to be proceeded with upon its merits and according to the views herein expressed.