I concur in the affirmance of the judgment appealed from, because the plaintiff, Southern Bell Telephone Telegraph Company, Inc., has not shown to my satisfaction that the trial judge, with the crucial *Page 757 facts obtained contradictorily with the parties before him, abused his discretion or acted arbitrarily in refusing to grant the preliminary injunction, or that the issuance of the writ itself will cause plaintiff irreparable injury.
But I dissent from the ruling on the question of attorney's fees and the remanding of the case for the purpose of determining that question.
Act No. 29 of 1924 regulates the procedure and practice and the power of the courts in respect to temporary restraining orders and preliminary writs of injunction. Section 2 of the statute, after providing for the discretionary right of the court to issue temporary restraining orders, further provides for the method of obtaining the dissolution of such orders. The statutory provision reads as follows, viz.:
"Upon two days' notice to the party obtaining such temporary restraining order, the opposite party, or any other party in interest, may, at any time, appear and move for the dissolution or the modification of such order, and in that event the court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. The court may, at any time, upon application of either party, or of any other party in interest, or upon its own motion, after like notice to either or both of the parties, or any other party in interest, as the circumstances may require, and after hearing, dissolve or modify any restraining order or preliminary writ of injunction theretofore issued by it." *Page 758
In Albert Pick Co. v. Stringer, 171 La. 131, 129 So. 731, and Vidal v. Sterlington Gas Corporation, 182 La. 19, 161 So. 6, we held that restraining orders granted under the provisions of Act No. 29 of 1924 have the same temporary force and effect as had preliminary injunctions issued under the provisions of the Code of Practice before the adoption of the statute, and that where such orders are wrongfully issued and are dissolved on a motion separately filed, tried, and disposed of prior to the trial of the rule nisi, attorney's fees will be allowed for obtaining their dissolution.
While under the superseded codal articles it was the settled rule that reasonable attorneys' fees might be allowed as damages for obtaining the dissolution of a preliminary injunction, it was also the settled rule that they could not be allowed where the dissolution of the writ resulted merely from the defense and trial of the case on the merits, and no effort to obtain such dissolution otherwise was shown to have been made. Albert Hanson Lumber Co. v. Mestayer, 130 La. 688, 58 So. 511, and cases therein cited. See, also, Three Rivers Oil Co. v. Laurence,153 La. 224, 95 So. 652; In re Morgan Co. 155 La. 915, 99 So. 696; Evasovich v. Cognevich, 159 La. 1035, 106 So. 556.
The reason why the court consistently refused to allow the recovery of attorneys' fees where the writ was dissolved only after passing on the merits was because it was not possible to separate the value of the services rendered in dissolving the writ from the value of the same services rendered *Page 759 in defending the suit. Hunt v. Hill, 138 La. 583, 70 So. 522.
The defendant in this suit did not, as did the defendants in the Albert Pick Co. and Vidal Cases, avail itself of the right granted by Act No. 29 of 1924 to move for the dissolution of the restraining order in advance of the trial on the merits of the rule for a preliminary injunction. Defendant's demand for setting aside the restraining order and for attorney's fees for its wrongful issuance was set up only in its return to the rule nisi; and it was only in the judgment on the merits of the rule nisi refusing the preliminary injunction that the temporary restraining order was dissolved.
Since defendant's demand for the dissolution of the restraining order was submitted along with the rule for a preliminary injunction and the restraining order was dissolved only after a trial on the merits of the rule nisi, it follows that defendant cannot be allowed attorney's fees for the dissolution of the restraining order, for to do so would be to allow the fees for virtually defending the suit on the merits of the rule for a preliminary injunction, which is not permissible.
In my opinion, it is a wholly useless proceeding to remand the case for the purpose of trying out the issue of whether defendant is entitled to the recovery of attorney's fees for the dissolution of the restraining order, where such issue, because it was not timely nor properly presented, has been forever foreclosed by the judgment appealed and affirmed herein. *Page 760