¶1The opinion of the Court was delivered by
¶2Plaintiff claims damages in tlie sum of $2,531.58 against-Mrs. Trezevant, as principal, and G. W. Montgomery, as security, on an iiijiiiic'iou bond and on a forthcoming bond, by means of which Mrs. Trezevant had ariested the sale and obtained the temporary possession of some twenty mules, which had been seized at the instance of plaintiff as the property of d fendant’s husband, as appears from a case entitled Tn zevant vs. Sheriff ct als., reported in 38 Ann. p. 147. In the dt cisión of that case this comt dissolved the injunction taken out by Mrs. Trezevant and reserved the rights of Lallande to claim the damages occasioned to him by said injunction. The ground of the motion to dismiss is want of jurisdiction rationce materias, for the reason that the elements of damages set up by plaintiff are, in the main, fictitious, and intended manifestly to create an appellate interest which does not in reality exist.
¶3Appellees’ principal argument is the alleged admission of plaintiff in his petition that the mules had been returned to the sheriff after the rendition of our judgment, and the admission resulting therefrom that the purposes or the forthcoming bond had been fulfilled and exhaused, and that therefore no action could be maintained on that bond now defunct. Hence her counsel contend that the demand must be restricted to the bond of injunction, which was only $1,475. They also contend that as our judgment condemned Mrs. Trezevant to the costs of his *831injunction, the demand by plaintiff of the sum of $577.18 for costs incurred in the injunction, and for the subsequent sale of the mules, cannot be entertained, as in that case Mrs. Trezevant could be twice condeinned to pay the same costs.
¶4The position is absolutely untenable, and the serious argument' ■which counsel for appellees have been driven to in order to support the contention that no claim could be made out ou the forthcoming bond is very conclusive proof that the claim predicated thereon is not absolutely fictitious, and.that it forms an important element in plaintiff’s real demand.
¶5While it is true that our judgment has condemned Mrs. Trezevant to pay costs in her injunction suit, it is equally true that the surety is. not included in the judgment, and that a portion of the costs presently claimed by plaintiff have been incurred since the dissolution of the injunction and partake of the nature of damages resulting therefrom. It also appears that in a supplementary petition, which appellees’ counsel have apparently lost sight of, plaintiff corrected his previous allegation in which he had acknowledged that two of the mules had died of a natural death, and that the eighteen others had been turned over to the sheriff and by him sold under the original writ. In his supplementary petition, plaintiff charges that the two missing mules had not died, but that they had been illegally retained by Mrs. Trezevant, who was responsible therefor, together with her surety on the forthcoming bond. It therefore follows that the damages claimed by plaintiff, even if not justified under the law and the facts of the case, are at least not so fictitious as to affect our jurisdiction, which is made apparent on the face of the pleadings.
¶6The motion to dismiss this appeal is therefore dismissed.
¶7Dissenting Opinion.
¶8The defendant, Mrs. Trezevant, enjoined the sale of twenty mules, seized under executory process, together with a plantation, as the property of her husband, George T. Trezevant, claiming to be the owner of the same.
¶9During the pendency of the injunction suit, she was permitted to take possesion of the mules and retain the same until the final decision of the cause. Her injunction was dissolved by a decree of this court. After this decree eighteen of the mules were delivered to the sheriff and by him sold.
¶10The present suit was then brought by the plaintiff against Mrs. Trezevant and G. W. Montgomery, the surety on her injunction bond, to recover the damages caused by the injunction — the bond being for the amount of $1475.
¶11*833The damages set forth in the petition were:
¶121. For the difference in the value of the mules when seized and the amount for which they sold after the injunction was dissolved.
¶132. For the costs of the injunction suit and those incurred in the sale of the mules after the dissolution of the injunction.
¶143. The attorneys’ fee in the injunction suit.
¶15These damages are set forth in the petition as amount ’g to $2,531. The appellees in the motion to dismiss charge that tlu • claims are largely fictitious, and only asserted to give jurisdiction i nis court; that, for instance, the large sum claimed for costs and ,;o -at to be recovered as damages, were covered by the judgments ¡rich dissolved the injunction wherein Mrs. Trezevant was condemned to pay these costs, and that there could not be a separate suit and a second judgment for this same charge.
¶16As confirmatory of this view, and of the proposition embraced in the motion to dismiss and urged by the appellees’ counsel, we need only refer to the brief of the plaintiff and appellant's counsel, in which he-sums up his actual demands, and all that he now claims he should have judgment for, thus :
¶17The plaintiff had judgment in the lower court for $200. In addition thereto his counsel claims $873.25, the loss on tire mules, certain items of costs stated, the whole amounting, according- to his calculation, to $1,502.75, which is the total amount he claims to be entitled to, and for which only he asks that judgment shall be rendered.
¶18This statement plainly shows to my satisfaction that this court has no jurisdiction of the cause, even as to Mrs. Trezevant, the principal cn the injunction bond, but the want of jurisdiction of this court as to the demand against the surety, Montgomery, is still more conspicuous. The full amount of the bond is $1475, and for all damages caused by the injunction the full limit of his liability is that amount, the amount of his obligation. Beyond that he cannot be held under the law. On the delivery bond on the face of the petition he cannot be held except for the value of two mules not delivered, $220. Add this to $1475, making $1725. So that to this sum there is an absolute limit to his liability. Certainly all beyond that can only be held as purely fictitious.
¶19For these reasons I dissent from the opinion to dismiss, and thus dissenting take no part on the merits.