Verges v. Gonzales

*416 On the Merits. The opinion of the Court was delivered by Bermudez, C. J. J. M. Oientat, surety on the injunction bond furnished in this case, complains that he was mulcted in damages by the judgment dissolving the injunction; that he was not sued, and that there was no demand from the defendant in injunction that he be condemned in damages. The injunction obtained in this case was not sought to arrest the execution of a money judgment. Its object was to prevent the putting in possession of an adjudicatee of real property claimed by the plaintiff, a third person, as owner. Article 304 of the Code of Practice does not apply to cases of this description. 32 An. 718, 974. In suits of this character, the injunction must first be dissolved, and the defendant in injunction must be left to his recourse on the bond for damages. If it were true, that he could in such a case claim at the same time a dissolution and damages, he could do so only by a proceeding in the nature of a direct suit, in which the surety should be cited and afforded an opportunity to defend himself. Under no circumstances, however, could he recover damages against the surety without asking for the same. A prayer for general relief would not warrant a judgment against the surety. It is, therefore, ordered, adjudged and decreed that the judgment appealed from, as far as it affects J. M. Oientat, be reversed, and that this case as concerns him be remanded to the lower court, there to be reinstated in the condition in which it stood before it was fixed for trial; appellees to pay costs in both courts.