Bledsoe v. Mack

• Decision Date: 21 February 1933
• Docket Number: No. 9851.,9851.
• Citation: 57 S.W.2d 869
• Parties: BLEDSOE v. MACK.
• Court: Texas Court of Appeals

Page 869

57 S.W.2d 869

BLEDSOE v. MACK.

No. 9851.

Court of Civil Appeals of Texas. Galveston.

February 21, 1933.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Perry C. Mack against W. F. Bledsoe and others. From a judgment in favor of plaintiff, named defendant appeals.

Reversed and remanded.

W. J. Durham, of Sherman, for appellant.

LANE, Justice.

On the 11th day of April, 1932, Perry C. Mack filed in the Sixty-First district court of Harris county, Tex., his petition praying for the issuance of a temporary injunction restraining W. F. Bledsoe and others from doing certain enumerated acts, not necessary to be here mentioned.

The court granted the temporary injunction prayed for upon the allegations of the petition without a hearing.

The petition was signed by the applicant. The affidavit attached to the petition is as follows:

"The State of Texas, County of Harris.

"Before me, the undersigned authorities, on this day personally appeared Perry Mack, who being by me first duly sworn, says that he is the Deputy Grand Master of the Grand Lodge, United Brothers of Friendship of Texas, and is the plaintiff in the above suit, and that matters stated in the foregoing suit are true and correct according to the best of his knowledge and belief.

                  "April 11, 1932
                         "Lilael D. Ewing, Notary Public in
                              and for Harris County, Texas."
                

On the 28th day of April, 1932, W. F. Bledsoe filed his supersedeas bond in the sum of $1,500, as fixed by the court and approved by the clerk of the court, thus perfecting his appeal to this court.

The temporary injunction was suspended by order of the court pending appeal.

For reversal of the judgment, appellant contends that the affidavit attached to the petition was not such as is required by the law; that it is not a verification of any fact or facts alleged in the petition; therefore the court erred in granting the temporary injunction on such petition.

Appellant's contention is supported by an unbroken line of decisions of our state courts.

In City of Arlington v. Dallas-Fort Worth Safety Coach Co. (Tex. Civ. App.) 270 S. W. 1094, 1095, the affidavit to an application for a temporary writ of injunction was practically the same as the one in the present case. In that case the court, in speaking of the phrase "verified by his affidavit," as used in article 4649, Revised Civil Statutes (now Rev. St. 1925, art. 4647), said:

"`Verified by his affidavit,' as used in the above statute, means proved to be true or correct; to establish the truth of; confirmed. 4 Words & Phrases (Second Series) pages 1152, 1153. It has been held that the verification must be direct and in such positive terms as would sustain a charge of perjury or false swearing, if the verification should prove to be false, and the affidavit must show to have been made on the personal knowledge of the affiant as to the truth of the allegations verified. Verification on information and belief is held to be insufficient (Forest Oil Co. v. Wilson [Tex. Civ. App.] 178 S. W. 626; Graham v. McCarty, 69 Tex. 324, 7 S. W. 342; So. Oil & Gas Co. v. Mexia Oil & Gas Co. [Tex. Civ. App.] 186 S. W. 446, and numerous other cases), nor is an affidavit that the allegations sought to be verified are true and correct `to the...