State Banking Board v. Smyth ( 1927 )

Appeal from an interlocutory order restraining the members of the state banking board and the state treasurer "from paying out to any bank, corporation, partnership, association, or any individuals, any of the depositors' guaranty fund now in possession and control of the state banking board of the state of Texas, or any of said funds in the hands of the state treasurer of the state of Texas, until the final disposition of this suit, or until the further orders of this court herein."

The injunction was granted ex parte upon the allegations of the petition alone, and without hearing. The petition is verified by the attorney for the petitioners, whose affidavit states "that each and all of the allegations contained therein are true to the best of my knowledge and belief." This affidavit is insufficient to support a writ of injunction. White v. Ferris (Tex.Civ.App.) 186 S.W. 367; Butler v. Remington (Tex.Civ.App.) 230 S.W. 224; Guaranty Co. v. Stalte (Tex.Civ.App.) 256 S.W. 632; Arlington v. Coach Co. (Tex.Civ.App.)270 S.W. 1094.

The correctness of this holding is conceded; but appellees contend that, where not called to the attention of the trial court by motion to dissolve the temporary injunction or otherwise, any defect or irregularity in the affidavit is waived, and will not be considered on appeal. The exact question presented in this contention was raised in White v. Ferris and Arlington v. Coach Co., above, and was decided adversely to appellees' contention. We therefore hold that the trial court was without power under the showing made by the affidavit to grant the temporary injunction.

A number of other questions involving the sufficiency of the petition as showing any right whatever, not only to the injunctive relief prayed for, but to any relief at all either against the appellants or other parties in the suit, are urged. It is manifest that the mandatory relief sought against the members of the banking board and the treasurer is without the jurisdiction of the district court. This point was also conceded in the argument. It may also be seriously questioned whether any of the other relief which the petitioners seek may be granted. The petition was manifestly hurriedly drawn, and its fact allegations are quite meager. In view of this, and the further fact that several of the questions raised involving a construction of the guaranty fund law and the effect of its repeal upon the status of the fund are now before the Supreme Court in applications for mandamus by banking institutions not parties to this suit, we refrain from discussing any of these questions.

The temporary injunction appealed from is dissolved.

Injunction dissolved.

BLAIR, J., not sitting.