On Application for Rehearing.
Blanchard, J.Defendant’s injunction of the order of seizure and *704sale was based on three grounds: — (1) That the plaintiff was interposed person without interest in the mortgage note and in the suit upon it; (2) that a sum approximating $3000.00, which, while included in the notes, was actually withheld from defendant at the time the contract of loan was eonsumated and the note and mortgage executed; (3) that the note was obtained by fraud and without valid consideration.
The motion to dissolve put at issue all these averments. It charged the injunction improvidently issued because the allegations of the petition for injunction are false, and because the same are insufficient to justify the writ.
This plea, called a motion to dissolve, was really an, answer to the merits of the petition for injunction and should have been so styled.
Evidence was adduced and trial had as fully as though the cause was being tried upon its merits.
This being so, it is now considered that final determination upon the merits of the controversy may be had, and, thus, further litigation obviated, further delay in that portion of the debt justly due prevented, and further consumption of the time of the litigants and of the court avoided.
In the opinion of this court, handed down, it was held that the sum of $2700.00, of the $9000.00 loan, was shown by the evidence not to have been received by the defendant, Donnes, nor to have been paid out for his account, and that the further sum of $90.00 claimed as commissions by plaintiff’s agent, should not have been deducted from the amount representing the loan to the defendant.
To the extent of these two sums, as credits to be placed on the mortgage note as of date April 26, 1899, it was thought the ease for injunction had been made out in favor of the debtor, but not made out in respect to other issues raised.
In her application for rehearing the plaintiff (Mrs. Taft) asks final determination of the case, even to the extent of consenting that the sums mentioned be entered as credits on the note, should the court finally conclude such credits are allowable.
Inasmuch as defendant could gain nothing further than this by a second trial of the cause below on its merits, except time, and inasmuch as the giving of time to debtors is not considered by courts in matters such as that here presented, it is ordered that the decree heretofore handed down herein by this court be set asidej and it is now adjudged *705and decreed that the judgment appealed from, dissolving the injunction which issued in this case, be affirmed in so far as it allows the writ of seizure and sale to proceed for the sum of six thousand, two hundred and ten dollars, with interest at the rate of 8 per cent, per annum from April 26, 1899, and 10 per cent, attorney’s fees on the aggregate of said principal and interest — which said sum of $6210.00 is declared to be the total amount of the loan made by plaintiff to defendant on April 26, 1899, and secured by mortgage of that date.
It is further ordered, adjudged and decreed that in respect to the sum of two thousand seven hundred and ninety dollars of the said loan, together with interest and attorney’s fees thereon; the judgment of the court a qua be avoided and reversed, and as to said amount and interest and fees the injunction be made perpetual — costs of both courts in so far as the injunction proceedings are concerned to be borne by the plaintiff (Mrs. Taft); those of the executory process by defendant (Donnes).
Rehearing refused.