The rehearing herein granted was restricted to the question of attorneys' fees.
I. The case is stated fully in our original opinion; but the only matters pertinent to the present inquiry are the following, which we quote therefrom, to wit:
"While the suit was instituted by way of injunction against the bank, its real purpose is to enforce the execution by defendants and the delivery to plaintiff of the original contract of lease. * * *
"The bank filed an exception of no cause of action, an exception of nonjoinder of proper parties, and a motion to dissolve the injunction [on the same grounds]. The defendants, lessors, also filed an exception of no cause of action, and moved to dissolve the injunction. * * *
"On the trial of the motions to dissolve the injunction the merits of the case were heard in full, and the court, with all the facts before it, overruled the exception of nonjoinder, sustained the exception of no cause of action, dissolved the injunction, and awarded the defendant bank $250 as attorneys' fees, and awarded the defendants, Mrs. Rea et al., $500 as attorneys' fees."
II. In Fariss v. Swift, 156 La. 12, 99 So. 893, this court said:
"Whenever an attachment or other conservatory writ is dissolved after hearing the merits, or so that it is impossible to differentiate between the attorney's services for dissolving the attachment [or injunction, or other writ] and those for defending the suit, such *Page 1010 attorney's fees cannot then form an element of the damages to be allowed for the wrongful issuance of the writ, `for to do so would be to allow the fees virtually for defending the suit on the merits, which is not permissible'" — citing Three Rivers Oil Co. v. Laurence, 153 La. 224, 95 So. 652. See, also, Kavanaugh v. Frost-Johnson Lumber Co., 149 La. 972, 90 So. 275.
III. It is therefore clear that the defendants, Mrs. Rea et al., are not entitled to attorney's fees.
As to the defendant bank it is true that, in the court below, it took no active part in the trial; nevertheless it did file an exception of no cause of action, based (as we read its original brief filed herein) on the proposition that plaintiff had no right of action against it either ex delicto or ex contractu. And the fact remains that its said exception was sustained by the court below at the same time that it dismissed the suit, whilst its exception of nonjoinder was expressly overruled; that it did not answer the appeal or ask this court to sustain said exception of nonjoinder, but on the contrary expressly (in its said brief) asked this court to affirm the judgment of the lower court sustaining its exception of no cause of action.
It is therefore clear that the injunction was dissolved as to the bank, not on any matter of form or irregularity (say, nonjoinder), but only after "the merits of the case were heard in full, and the court had all the facts before it."
The fact of the matter is that the court below and (certainly) this court dissolved the injunction (the "real purpose of which was to enforce the execution by defendants, and the delivery to plaintiff, of the original contract of lease"), simply because, on the merits, plaintiff had no just claim to the lease which he thus sought to obtain. This, in our original opinion, we said:
"Under these circumstances defendants [Mrs. Rea et al.] were well within their legal rights in demanding the immediate return of the lease *Page 1011 and draft. We presume it was upon this theory that the learned judge of the district court sustained the exception of no cause of action, dismissed the suit, and awarded both defendants attorney's fees."
Hence the injunction was dissolved on the merits; and accordingly neither defendant is entitled to attorney's fees for dissolving same.
Decree. The judgment appealed from is therefore amended by striking therefrom all allowance for attorney's fees to either defendant; and as thus amended it is affirmed; the costs of this appeal to be borne by the defendants-appellees, and the costs of the court below to be borne by the plaintiff-appellant. The right is reserved to the defendants-appellees to apply for a rehearing.