
    (66 South. 353)
    No. 20391.
    COMMONWEALTH BONDING & CASUALTY INS. CO. OF PHŒNIX, ARIZ., v. REYNOLDS et al.
    (May 11, 1914.
    On the Merits, Nov. 4, 1914.)
    
      (Syllabus by the Court.)
    
    Injunction (§§ 163, 176*) — Discontinuance in Part — Effect—Conditional Discontinuance.
    Where there are two distinct grounds for injunction, the discontinuance of one does not operate the discontinuance of the other. A discontinuance of an injunction conditioned on the payment of costs by the defendants does not become operative until the costs are paid.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 357-371, 389, 395; Dec. Dig. §§ 163, 176.*]
    O’Niell, J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.
    Action by the Commonwealth Bonding & Casualty Insurance Company of Phoenix, Ariz., against Hampden Reynolds and others. From judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    E. R. Mabry, of New Orleans, for appellant. McOloskey & Benedict, of New Orleans, for appellee Hibernia Bank & Trust Co.
   On Motion to Dismiss.

PROVOSTY, J.

The defendant having a contract with the Sewerage and Water Board, and the plaintiff being surety on said contract, these two entered into an agreement with the Hibernia Bank & Trust Company, by which all money accruing to the defendant under said contract should be deposited in the said bank to the credit of a special account, and not to be withdrawn without the counter signature of the plaintiff. The bank having allowed the defendant to deposit $16,000 of said money to his personal account, instead of requiring it to be deposited to the special account, the plaintiff brought this suit enjoining defendant from drawing out said $16,000 without the agreed-upon counter signature, and enjoining the bank from allowing him to do so, and enjoining both defendant and the bank from disposing of the money to accrue in the future under said contract otherwise than as agreed upon.

After the institution of the suit, the parties entered into an agreement for the withdrawal of the $16,000; and, on motion of plaintiff, the injunction was dissolved, in so far as concerned the $16,000.

On motion of the bank, the court then dissolved the injunction in toto as against the bank, on the ground that plaintiff had discontinued the injunction as against defendant, and that “there now exists no issue which this appearer is called upon to meet.”

From that judgment the plaintiff has appealed.

The bank moves to dismiss the appeal, on the ground that the judgment is interlocutory, and cannot cause any injury not compensable in money, and is therefore not appealable.

The said judgment is not interlocutory, but is a final judgment disposing of the entire suit against the bank, and is therefore appealable.

“An order dismissing an injunction is a final order where the injunction is the only relief prayed for in the bill and is equivalent to a dismissal of the bill.” Dreiske v. People’s Lumber Co., 107 Ill. App. 285.

The petition contains no other prayer than, first, for the issuance of this injunction; and, second, its perpetuation. Remove this injunction from the suit, and there is nothing left; hence the judgment dissolving this Injunction is a final judgment in the suit.

With the merits of the case, this court is not at present concerned.

The motion to dismiss is overruled.

O’NIELL, J., takes no part.

On the Merits.

LAND, J.

The case is stated in our opinion on the motion to dismiss. The only question of law in the case is whether the discontinuance of the injunction as to the $16,000, deposited to Hampden Reynolds’ personal account, dissolved the injunction against defendants from disposing of the money to accrue in the future under said contract otherwise than as agreed upon.

Under the allegations of the petition, the Hibernia Bank & Trust Company was a mere depositary to re’ceive all the monthly payments from the sewerage and water board and deposit the same to the credit of “Hampden Reynolds’ special account.” When thus deposited, the money could not be withdrawn, except by checks countersigned by the plaintiff. In October, 1913, the bank, conniving with Reynolds, permitted him to deposit $16,-308.47 to account of “Hampden Reynolds,” thus enabling Reynolds to check out the money without the knowledge and consent of the plaintiff. On these allegations the plaintiff sued out an injúnction against the bank and Reynolds, restraining them from checking out said deposit without the consent of the plaintiff, and further restraining them from manipulating the payments assigned to the bank in any manner whereby the moneys derived or to' be derived from said contract might be deposited or used in any manner other than being first placed to the credit of the “Hampden Reynolds special account.”

On a satisfactory showing by Reynolds that the sum of $16,308.47 had been used, first, in paying the bank $10,000 for money previously loaned and used for carrying out the contract with the board, and, secondly, in paying for labor, material and other necessary construction expenses, and on Reynolds’ promising to deposit in “Hampden Reynolds’ special account” all checks or moneys derived from the contract, the plaintiff moved that, “upon payment of costs by defendants,” the injunction be dissolved in so far as it affects the deposits in the account known as “Hampden Reynolds’,” but otherwise to remain in full force and effect; and it was so ordered.

Counsel for the bank filed a rule to dissolve the injunction, with 10 per cent, attorney fees, “on suggesting that, since the institution of this suit, plaintiff in injunction has voluntarily discontinued the injunction as against Hampden Reynolds, a codefendant herein, and that therefore there now exists no issue which this appearer is called to meet.”

Two days later, the plaintiff, with leave of court, withdrew the motion and order to dissolve as to the “Hampden Reynolds” account, because the defendants had not complied with the condition precedent of payment of costs.

On trial, the rule of the bank was made absolute, and several exceptions which had been filed by the same party were overruled.

The judgment is clearly erroneous. There were two accounts and two grounds of injunction. The discontinuance affected only one account and the first ground of injunction. Besides, the discontinuance was based on the condition of the payment of costs, which was never complied with.

The question is purely one of law on the face of the record. Evidence as to agreements, compromises, and other facts appertain to the merits.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that this cause be remanded for further proceedings according to law; and that the appellees pay the costs of appeal.

PROVOSTY, J., concurs in the decree. O’NIELL, X, dissents.  