On Kehearing.
MONROE, O. J.Plaintiff made no. complaint of the judgment as heretofore handed down. Defendant applied for a rehearing upon the grounds that the court erred in holding that the claims for damages, as based upon that portion of the judgment with respect to which the injunction was dissolved, must be supported by proof, in referring the claim therefor to the merits, and in remanding the case for trial on the merits; and, becoming satisfied that those assignments are not without merit, the court granted the rehearing.
The Code of Practice declares that—
“Art. 304. * * * And on the trial of the injunction, the surety on the bond shall be considered a party plaintiff in the suit; and in case the injunction be dissolved, the -court, m the same judgment, shall condemn the plaintiff and surety, * * * jointly and severally, to pay to the defendant interest at the rate of eight per cent, per annum on the amount of the judgment, and not more than twenty per cent, as damages, unless damages to a greater amount he proved," etc. (Italics by the writer.)
[3] It is evident, and it has been so held, that the provisions quoted are to be confined in their application to cases in which judgments for money have been enjoined. Orescent, etc., Co. v. Larrieux, 30 La. Ann. 740; Simonds v. McMichael, 46 La. Ann. 472, 15 South. 23. It is equally evident, and it has been so held, that in such cases the trial court may (if not must) award damages to the plaintiff in the seizure to the extent of not more than 20 per cent, of the amount with respect to which the injunction is dissolved, and that such award, may be made without proof of the damages. Wilcox v. Bundy, 13 La. 389; Cannon v. Labarre, 13 La. 399; Rivet v. Murrell & Co., 121 La. 201, 46 South. 210, 126 Am. St. Rep. 320; Williams v. Close, 14 La. Ann. 737; Perry v. Kearney, 14 La. Ann. 400; Ludwig v. Kohlman, 5 La. Ann. 298; Morgan v. Driggs, 3 La. Ann. 124; Calderwood v. Trent, 9 Rob. 231; De Lizardi v. Hardaway, 8 Rob. 20. That under Code Prac. art 304, attorney’s fees may be allowed as damages, without proof, within the 20 per cent, provided for by that article, has been held in several of the eases above cited, and in Brown v. Lambeth, 2 La. Ann. 822, and Farrar v. New Orleans Gaslight & Banking Co., 2 La. Ann. 874. In this instance the amount allowed by the trial judge appears to be well within that authorized by the statute, but we find no sufficient reason for increasing it. On the other hand, as the judgment appealed from provides for a hearing of the ease on the merits, it is only necessary that we should affirm it in order to protect the par-ties in all the rights to which they seem entitled.
It is therefore ordered that' the decree heretofore handed down be set aside, and that the judgment appealed from be now affirmed, at the cost of the appellant.