Opinion
No. 16780.
February 6, 1939.
Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge.
On application for rehearing.
Judgment amended and rehearing refused.
For former opinion, see 185 So. 473.
Alwyn J. Justrabo, of New Orleans, for appellant.
Porteous, Johnson Humphrey, of New Orleans, for appellees R.F. Mestayer Lumber Co. and Standard Surety Casualty Co. of New York.
Gordon Boswell, of New Orleans, for appellee Standard Ins. Co.
John May, of New Orleans, for appellee Travelers Ins. Co.
Counsel for Standard Surety Casualty Company of New York — called in warranty by R.F. Mestayer Lumber Company, Inc. — who are also counsel for the latter company, direct our attention to the fact that, when judgment was rendered in the district court in favor of the Mestayer Lumber Company dismissing the suit of plaintiff, and plaintiff appealed from that judgment, the Mestayer Lumber Company did not appeal from that part of the judgment which dismissed its call in warranty.
In application for rehearing they, therefore, complain of the fact that, after rendering decree in favor of plaintiff and against Mestayer Lumber Company, we rendered a decree in favor of the Mestayer Lumber Company and against Standard Surety Casualty Company as warrantor.
Since there was no appeal as against the warrantor, the decree should not have been rendered against that company. We were misled by the fact that counsel who represented the Lumber Company also represented the insurer of the Lumber Company and appeared on the brief and argued the case on behalf of both of the said parties.
It is therefore ordered, adjudged and decreed that the decree heretofore rendered by us be and it is amended insofar as it runs against Standard Surety Casualty Company of New York in warranty.
The application for rehearing is refused.
Rehearing refused.