Galbreath Gas Co. v. Lindsey

• Decision Date: 07 December 1912
• Docket Number: Case Number: 2071
• Citation: Galbreath Gas Co. v. Lindsey, 35 Okla. 235, 129 P. 45, 1912 OK 836 (Okla. 1912)
• Parties: GALBREATH GAS CO. v. LINDSEY et ux.
• Court: Oklahoma Supreme Court

1912 OK 836

129 P. 45

35 Okla. 235

GALBREATH GAS CO. v. LINDSEY et ux.

Case Number: 2071

Supreme Court of Oklahoma

Decided: December 7, 1912

Syllabus

¶0 1.PLEADING--Defective Verification--Waiver.Where a temporary restraining order is granted by a judge at chambers, without notice, solely upon the face of a petition improperly verified, the defect in the verification is waived where, without raising it, defendant answers to the merits.

2.INJUNCTION--Petition--Irreparable Injury.Petition examined, and held that a threatened irreparable injury for which the law affords no adequate remedy is disclosed on its face, and that the same properly invokes the aid of a court of equity in the absence of an allegation that defendant is insolvent.

3.PLEADING--Demurrer--Form.A demurrer to an answer, which alleges "that the second clause of the first paragraph of the answer is not responsive to an allegation contained in the petition," and that "the third clause of said paragraph is evasive," and of another paragraph "that the same states conclusions of law and is not responsive * * * to the allegations * * * of the petition," is insufficient under the statute, and was improperly sustained.

4.INJUNCTION -- Petition--Verification-- Statutes.Under Comp. Laws 1909, sec. 5757, providing that an injunction may be granted when it satisfactorily appears to the court or judge, by the affidavit of the plaintiff or his agent, that plaintiff is entitled thereto, a petition verified on information and belief only is insufficient.

Haskell B. Talley, for plaintiff in error.

Chas. L. Fildes, for defendants in error.

TURNER, C. J.

¶1 On May 27, 1909, Lee Lindsey and wife, Lila D. Lindsey, filed in the district court of Tulsa county their petition, the object of which was to restrain the defendant from disconnecting its gas supply pipes from plaintiffs' premises, and from refusing to supply the same with gas for heating and lighting the residence and running an engine, situate on the premises, used for pumping water throughout the tenements located thereon, basing their right to the gas supply upon an alleged contract with defendant, a copy of which is filed as an exhibit to their petition.They also sought to enjoin the collection of defendant's claim of $ 160 for gas claimed to have been furnished by defendant under said contract, upon the ground that the same was an excessive charge under the contract.On the same day application was made to the district judge, at chambers, for a restraining order, which was granted, without notice, solely upon the face of the petition, which was verified thus:

"State of Oklahoma, County of Tulsa--ss.:

"Before the subscriber personally appeared Lee Lindsey, who, being duly sworn, says that he is one of the plaintiffs in the foregoing petition, and that each and every allegation therein made is true to the best of their knowledge and belief.

"LEE W. LINDSEY.

"Subscribed and sworn to before me this 26th day of May, A. D. 1909.

"PETER DEICHMAN, Notary Public."

¶2 On June 2d, to show cause, defendant filed a motion to vacate the order, on the ground that the same was unsupported by sufficient affidavit, and on the same day a general demurrer, which was overruled; whereupon, on June 5, 1909, it filed a motion to dissolve the injunction.On June 12, 1909, this motion, which is verified, but unsupported by affidavit, was overruled; whereupon, on June 14, 1909, defendant filed substantially the same motion thus supported, which was met with counter affidavits and also overruled.Thereupon defendant answered, in effect a general denial, and, after making certain specific denials, for further defense said:

"* * * That the plaintiffs have used on their said premises the gas of the defendant for the purpose of running a gas engine which consumes a large amount of gas, and an amount, in all probability, exceeding the gas consumed for all other purposes by the plaintiffs in their residence for heating and lighting purposes; that the use of the defendant's gas for the running of said gas engine was not contemplated in said alleged contract of December 10, 1906, and that the defendant did not, under said contract, or under any other contract, agree to furnish the plaintiffs with gas for the use of said gas engine, and that by so using the gas of the defendant, plaintiffs have avoided and rendered inoperative said contract; and that the plaintiffs have estopped themselves to claim any right under said contract of December 10, 1906, by reason of the fact that the said plaintiffs have so used the gas of the defendant for other and additional purposes not contemplated under said alleged contract."

¶3 To this plaintiffs demurred "* * * upon the grounds that said answer is insufficient, in that the second clause of the first paragraph is not responsive to any allegation contained in the petition, and because the third clause of said paragraph is evasive, and does not deny the execution of the contract therein described.And, for further grounds of demurrer, the second paragraph of said answer states conclusions of law and is not responsive, either by way of avoidance, confession, or denial of the allegations, or either of them, contained in the said petition"--which was sustained and exceptions saved, and, on refusing to plead further, judgment was rendered and entered against defendant by "default," the injunction made perpetual, and defendant brings the case here.It is first contended that the court erred in refusing to dissolve the restraining order, for the reason that the same was granted upon the face of the petition improperly verified.That such it was seems clear.Comp. Laws 1909, sec. 5757, says:

"The injunction may be granted at the time of commencing the action, or any time afterwards, before judgment by the district court, or the judge thereof, or in his absence from the county, by the county judge, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto."

¶4 In City of Atchison, etc., v. Bartholow et al., 4 Kan. 124, the temporary injunction was granted, as here; the petition being sworn to upon the information and belief of petitioner.In holding the same insufficient, and that the court erred in receiving it in evidence over objection and in granting the injunction thereupon, the court said:

"Section 248 of the Code provides that 'a temporary injunction may be ordered upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.'The affidavit of the plaintiff to the necessary facts will, under this provision, be sufficient, and the petition, if properly verified, may be used as an affidavit, i. e., it may be read as testimony.To determine whether the petition here was admissible as testimony, it will be necessary to ascertain the legal requirements of an affidavit."

¶5 And, after holding that such it did not possess, said:

"The petition, as verified, was not 'a declaration under oath,' and it was error to permit it to be read, against the objection of the defendant, for which reason the order of injunction must be vacated."See, also, Long v. Kasebeer, 28 Kan. 226;State ex rel. v. Loomis, 46 Kan. 107, 26 P. 472;Center Tp. v. Hunt, 16 Kan. 430;State v. Bd. Co. Com'rs, 35 Kan. 150, 10 P. 535;Ruge v. Apalachicola, etc., Co. et al., 25 Fla. 656, 6 So. 489;Lee v. Clark, 49 Ga. 81;Koehler v. Dobberpuhl, 56 Wis. 497, 14 N.W. 631.

¶6 And so we might hold, and vacate the order for insufficient verification, were it not for the fact that the court was not called on to pass upon the motion intended to raise the question, filed June 2d, and the question thereby sought to be raised cannot be raised in this court for the first time.2 High on Inj. sec. 1569, says:

"So the insufficiency of the verification, as the basis for a preliminary injunction, cannot be raised upon an appeal from a final decree granting a perpetual injunction; and in such case it is immaterial that the bill was improperly verified, or that a preliminary injunction was improperly granted upon such verification.So, although a preliminary injunction has been improperly granted because of the lack of verification to the bill, yet if it has been allowed to stand until the hearing, and the evidence discloses sufficient equity to support it, it should be perpetuated.And an objection for want of proper verification must be taken in apt time, and if raised after a hearing upon the merits it comes too late."

¶7 Or, as stated by us in the syllabus in Glasco v. School Dist. No. 22, McClain County, 24 Okla. 236, 103 P. 687:

"Any defect or irregularity involved in the verification of a petition for an injunction is waived where, without raising it, defendant answers to the merits."

¶8 It is next contended by defendant that the court erred in overruling its demurrer to the petition, because, it says, the same disclosed on its face that plaintiffs have an adequate remedy at law.The point is not well taken.The petition substantially states that on December 10, 1906, plaintiffs and defendant entered into a contract, whereby defendant agreed to furnish to plaintiffs, for the period of fifteen years, all the gas they might find necessary to use for lighting and heating at their residence, situated and described on certain lands in Tulsa county, at the rate of $ 6 per annum according to the contract filed as an exhibit; that pursuant thereto plaintiffs forthwith provided the tenements on the described premises with necessary pipes for conveying gas; that defendant thereupon connected the same with its supply pipe, at the same time placing a meter in said tenements for the measurement of gas so furnished and consumed, and thereupon furnished the same as provided in said contract; that a short time thereafter defendant, at the request of plaintiffs and pursuant to said contract,...