West Texas Abstract & Guaranty Co. v. Stolte ( 1923 )

This is an appeal from an interlocutory order of the district judge refusing to dissolve a temporary writ of injunction, prosecuted by appellant. The first amended petition discloses that appellee sued the American Rio Grande Land Irrigation Company, Stewart Farm Mortgage Company, W. E. Stewart Land Company, and appellant, and states that all the defendants had been theretofore cited, except appellant, and citation was sought against it. When the original petition was filed is not shown in the amended pleadings, although this should always be done. The amended pleading was filed on June 4, 1923, and is labeled "Plaintiff's first amended original petition." In this pleading appellee prayed for judgment for purchase money he had paid on certain land, in the sum of $5,511.25; for the rescission of the deed and the cancellation of his notes; that the defendants be compelled to accept a return of the land to them, and for exemplary damages in the sum of $10,000. Appellant filed a long answer, and this seemed to incite appellee to file a pleading denominated "Plaintiff's motion for restraining order." This was filed on June 5, 1923, and covers 17 typewritten pages, making his petition a part of the motion. In the motion appellee prays that appellant and the trustee, E. B. Witmer, be restrained from selling the land to satisfy the vendor's lien notes, which appellee was seeking to cancel. The motion was verified by the affidavit of an attorney for appellee, who swore that the facts set forth in the "application are true, to the best of my knowledge and belief."

The affidavit was not sufficient, A petition for a temporary injunction must be verified by positive averments, asserting the truth of the facts alleged, and an affidavit to the effect that the facts set out in the "application are true, to the best of my knowledge and belief," does not meet the requirements of the statute. Eccles v. Daniels, 16 Tex. 137; Edrington v. Allsbrooks, 21 Tex. 186; Pullen v. Baker, 41 Tex. 419; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; Spinks v. Mathews, 80 Tex. 373,15 S.W. 1101; Moss v. Whitson (Tex.Civ.App.) 130 S.W. 1034; Lane v. Jones (Tex.Civ.App.) 167 S.W. 177; Southern Oil Co. v. Mexia Oil Co. (Tex.Civ.App.) 186 S.W. 446; Graves v. O'Neil (Tex.Civ.App.) 189 S.W. 778; Lingwiler v. Lingwiler (Tex.Civ.App.) 204 S.W. 785; Wilkinson v. Lyon (Tex.Civ.App.) 207 S.W. 638; Wilkening v. Wolff (Tex.Civ.App.)220 S.W. 598; Butler v. Remington (Tex.Civ.App.) 230 S.W. 224. The defect in the affidavit was called to the attention of the trial judge in the motion to dissolve the injunction.

Article 4654, Revised Statutes, requires that a bond shall be given by the complainant before the issuance of the writ of injunction to the adverse party in such sum as may be required by the judge. The provisions of this article are mandatory. Paine v. Carpenter, 51 Tex. Civ. App. 191,111 S.W. 430; Phoebus v. Connellee (Tex.Civ.App.) 228 S.W. 982; Boykin v. Patterson (Tex.Civ.App.) 214 S.W. 611; Griffith v. State (Tex.Civ.App.)210 S.W. 294; Farb v. Theis (Tex.Civ.App.) 250 S.W. 290; Exparte Coward,110 Tex. 587, 222 S.W. 531. Without the bond, which was not given, the temporary injunction was void.

The order granting the temporary injunction is set aside, and the temporary injunction is dissolved.