delivered the opinion of the court.
This is an attachment proceeding to secure the effectiveness of the judgment. The court granted the attachment after judgment had been rendered and after an appeal had *688been taken, and thereafter dissolved the attachment at the instance of the defendant. Prom this last ruling the plaintiff appealed and while that appeal was pending the appeal in the principal action was decided and a new trial was ordered.
Considering these facts, and it appearing that the only question of law involved was whether or not the district court could grant the attachment without bond after an appeal had been taken from the judgment, the court found that that question need not be decided because it was based on the judgment entered in the principal action and that basis disappeared when the judgment was reversed by the Supreme Court; therefore the court dismissed the appeal.
The” appellant moved for a reconsideration of our decision, alleging that it was necessary to pass on the merits of the question because the district court, in setting aside its first order granting the attachment, imposed the costs upon the plaintiff and the dismissal of the appeal left in full force the order appealed from which, according to the appellant, was dearly erroneous. The case was reopened and both parties were again heard.
In our opinion the plaintiff-appellant is right. The same question involved in this case was decided in the case of Gandía v. Porto Rico Fertilizer Company, ante, page 243, the court holding that, notwithstanding an appeal from a judgment, the court which rendered it still had jurisdiction to grant ail attachment without bond, and that being so, it would be an injustice to permit that the plaintiff be compelled to pay costs imposed by an erroneous order from which he appealed in due time and in proper form. This question of costs was not specially discussed by the parties at the first hearing on the appeal, nor did it strike the attention of the court when ruling on the appeal.
It might be alleged that although there was a judgment when the attachment was moved for, that judgment was erroneous and that, therefore, it would not be unfair to impose *689upon the appellant the costs resulting from the attachment;; bnt whether the judgment was erroneous or not, the fact is*, that it existed and that a party who moves for an attachment nnder snch circumstances can not be charged with temerity. We have repeatedly held that temerity is the essential element to be considered in the imposition of costs.
By virtue of all of the foregoing the order appealed from must- be reversed in so far as it imposed the costs upon the plaintiff.
Reversed in part.
Justices Wolf, Aldrey, Hutchison and Franco Soto com cnrred.