Catlett v. M'Donald , 13 La. 44 ( 1839 )

Carleton, J.,

delivered the opinion of the court.

A rehearing has been granted in this cause, and the only question now raised by the parties, turns entirely upon the sufficiency of the affidavit upon which the injunction was granted at the suit of the plaintiff. It is as follows, viz. :

“ George Catlett, being duly sworn according to law, says, that all the material allegations in the foregoing petition are true to the best of his knowledge and belief, and that an injunction ought to be granted.”

The court below being of opinion, that the affidavit was insufficient, dissolved the injunction, dismissed the petition, and adjudged the plaintiff to pay twenty per cent, damages, and ten per cent, interest on the amount of the judgment enjoined with costs of suit. The plaintiff appealed.

This case does not materially differ from that of “ Reboul's Heirs vs. Behrens et al.,” 5 Louisiana Reports, 79. There the affiant swore, that “ the material facts and allegations in the said petition, are true and correct to the best of his knowledge.”

The court thought the affidavit insufficient to sustain the injunction, and held, that it ought to be “ such as to submit the party to the penalties of perjury, if the facts sworn to, appear to be otherwise. He should swear to avoid these penalties, that the facts stated, as within his knowledge, are true, and those not stated as within his knowledge, he believes to be true.”

The affidavit in the case before us, is equally vague and uncertain, and liable to the same objections. It appears to us insufficient, and that the court did not err in dissolving the injunction.

When the affidavit is insufficient, the injunction must be dissolved, even if it appears from the evidence that the party would be instantly entitled to a new

But the plaintiff’s counsel insists that though the injunction be improvidently or irregularly taken, it will not be dissolved if it appear from the evidence that the party will be instantly entitled to a new one, and cites 7 Martin, N. S., 276, 3 ibid., 480, 4 ibid., 499, 8 ibid., 684.

But as the court held in the case above cited, we are unable to say how another injunction could have issued regularly, after the dissolution of the first, on account of the insufficiency of the affidavit, until a new and sufficient one was made, which does not appear to have been the case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.