Henderson v. Reynolds, No. 20,920.

• Docket Nº: No. 20,920.
• Citation: 81 N.E. 494, 168 Ind. 522
• Case Date: May 28, 1907
• Court: Supreme Court of Indiana

168 Ind. 522
81 N.E. 494

HENDERSON
v.
REYNOLDS.

No. 20,920.

Supreme Court of Indiana.

May 28, 1907.

Appeal from Circuit Court, Elkhart County; James S. Dodge, Judge.

Action by William R. Reynolds against James H. Henderson. From an interlocutory order appointing a receiver, defendant appeals. Reversed.

[81 N.E. 495]

James L. Harman, for appellant. Edw. B. Zigler, for appellee.

MONKS, J.

This action was brought by appellee against the appellant for the appointment of a receiver for a growing peppermint crop on a farm belonging to appellant, upon which the appellee had formerly been a tenant. The only evidence at the hearing of the application for the appointment of a receiver was the verified complaint and an affidavit of appellee. Without notice to or appearance by appellant, the court appointed a receiver as prayed for. This is an appeal from said interlocutory order.

Appellee's verification of the complaint states that “all the statements in the complaint are true to the best of his knowledge and belief.” Appellant insists that an affidavit for the appointment of a receiver, without notice, is insufficient when sworn to upon knowledge and belief. An affidavit that the statements in an application for a receiver or for a temporary restraining order without notice and like applications “are true to the best of the knowledge and belief of the affiant,” or “to the best of his information and belief,” is insufficient, and is not admissible in evidence at the hearing of such application. Such application or petition, to be admissible evidence, must be verified in positive terms. Alderson on Receivers, §§ 113, 115; High on Receivers (3d Ed.) p. 97, § 112; Beach, Mod. Eq. Prac. § 769; High on Injunctions, §§ 35, 1567, 1569, 1574, 1575, 1581; Gibson's Suit in Chancery, § 818; Siegmund v. Ascher, 37 Ill. App. 122;Nusbaum v. Locke, 53 Ill. App. 242, 244;Grandin v. La Bar, 2 N. D. 206, 213-216, 50 N. W. 151;New South, etc., Ass'n v. Willingham, 93 Ga. 218, 18 S. E. 435;Cofer v. Echerson, 6 Iowa, 502;French v. Gifford, 30 Iowa, 148, 161;Verplanck v. Mercantile Ins. Co., 2 Paige (N. Y.) 450;Burgess v. Martin, 111 Ala. 656, 20 South. 506;Thompson v. Town Mfg. Co., 87 Ala. 733, 6 South. 928; Atchison v. Bartholow, 4 Kan. 124, 138-140; Harrison v. Beard, 30 Kan. 532, 533, 2 Pac. 632; Davis v. Reaves, 2 Lea (Tenn.) 649, 650-652; Campbell v. Morrison, 7 Paige (N. Y.) 157;Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305;Youngblood v. Schamp, 15 N. J. Eq. 42;Manistique Lumber Co. v. Lovejoy, 55 Mich. 189, 20 N. W. 899;Brooks v. O'Hara Bros. (C. C.) 8 Fed. 529; Ballard v. Eckman, 20 Fla. 661, 675, 676. In Catlett v. McDonald, 13 La. 45, the court held insufficient to authorize an injunction an affidavit that “all the material allegations in the petition were true to the best of the petitioner's knowledge and belief.” The facts should be positively sworn to, and ordinarily a verification upon information and belief is not received for this purpose. High on Injunctions, § 1567. In Seigmund v. Ascher, supra, the affidavit was that “he had read said complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to matters stated on information and belief, and as to those he believes it to be true.” The court said: “We have decided that this form of oath makes the whole answer on information and belief, as there is no way of distinguishing between matters so stated and those of which the complainant has knowledge. Deimel v. Brown, 35 Ill. App. 303.” In Reboul's Heirs v. Behrens, 5 La. 79, the affidavit for injunction stated “that the material facts and allegations in said petition are true and correct to the best of his knowledge.” The court held the oath to be insufficient, and said the affidavit “ought to be such as to submit the party to the penalties of perjury, if the facts sworn to appear to be otherwise.” In Burgess v. Martin, 111 Ala. 656, 20 South. 506, the court said, on page 657 of 111 Ala., on page 507 of 20 South.: “The allegations of the bill are sworn to by a person named ‘as true to the best of his knowledge, information and belief.’ This, upon the construction most favorable to complainants, means that the affiant has knowledge that some of the averments of the bill are true, that while he does not know he has been informed and believes that others of the averments are true, and that, as to yet other averments, he has neither knowledge nor information, but, without knowing the facts or ever having been informed of their truth, he believes them to be true; and whether any particular allegation of the bill is within one or the other of these three categories is wholly uncertain and unascertainable from this verification. But to construe the affidavit according to the general rule, most favorable to the party relying upon it, there is no room for affirmatively saying that it means anything more than the affiant believes that the allegations of the bill to be true, though he has neither knowledge nor information of their

[81 N.E. 496]

truth. Pickle's Adm'r v. Ezzell, 27 Ala. 623; Dennis v. Coker, 34 Ala. 611; Globe Iron Roofing & Corrugating Co. v. Thacher, 87 Ala. 458, 6...