W. B. P. Realty, Inc. v. Fontana

BOLIN, Judge.

This appeal involves the question of whether or not an exception of no right of action must be separately pled and disposed of or whether the exception may be pled and tried with a motion to dissolve a writ of sequestration.

Plaintiff sued defendants seeking a money judgment and in connection with its main demand caused certain property to be sequestered. Following the filing and disposition of pleadings not pertinent to this appeal, defendants filed an exception of no right of action which was included in and coupled with a motion to dissolve the sequestration and grant damages for its wrongful issuance. Plaintiff’s counsel of record was personally served with this motion, together with an order fixing the return date. Neither plaintiff nor its attorney were present when the motion was tried.

The trial court rendered judgment sustaining the exception of no right of action, dissolving the sequestration, and awarding attorney fees for its wrongful issuance, and plaintiff appeals.

Appellant’s only complaint before this court is that the exception of no right of action should not have been heard and disposed of at the same time the motion to dissolve was tried. The appeal totally lacks merit. The judgment appealed from is responsive in every detail to the pleadings which were personally served on plaintiff’s counsel.

The judgment is affirmed at appellant’s cost.