Howard v. Eddy

• Decision Date: 07 March 1896
• Docket Number: 8148
• Citation: 56 Kan. 498,43 P. 1133
• Parties: GEORGE S. HOWARD et al. v. E. D. EDDY et al
• Court: Kansas Supreme Court

43 P. 1133

56 Kan. 498

GEORGE S. HOWARD et al. v. E. D. EDDY et al

No. 8148

Supreme Court of Kansas

March 7, 1896

Decided January, 1896.

Error from Cowley District Court.

ACTION by George S. Howard and others against E. D. Eddy and another to enjoin the enforcement of a certain judgment. Plaintiffs bring here for review an order dissolving a temporary injunction. The facts are stated in the opinion herein, filed March 7, 1896.

Judgment affirmed.

Pollock & Love, for plaintiffs in error.

Joseph O'Hare, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On December 20, 1890, in the district court of Cowley county, E D. Eddy recovered a judgment against George S. Howard, Charles A. Howard, T. H. McLaughlin, and some other parties, for $ 1,969.33. Subsequently an execution was issued for the enforcement of the judgment, and on December 9, 1891, on the application of the above-mentioned debtors, the probate judge of Cowley county, without notice to the opposing parties, granted a temporary injunction to prevent the enforcement of the judgment. Soon afterward a motion was made in the district court to dissolve the injunction, upon the grounds that it was issued without notice, without sufficient evidence, that the petition on which the injunction was granted was not properly verified, and that the facts set forth in the petition did not entitle the parties to an injunction. The motion was allowed and the injunction dissolved, but the ground upon which the ruling was based is not stated.

The ruling of the court must be sustained. The temporary injunction was inconsiderately granted upon a verified petition. It is not necessary that the affidavit in support of the application for the injunction should be a separate independent paper. If the petition sets forth the necessary facts, and is properly sworn to, an order may be allowed thereon. When used for that purpose it must state facts with the detail and particularity that are required in an affidavit or deposition. "When a verified petition is used as an affidavit, its allegations must be construed as those of an affidavit, and must be such statements of fact as would be proper in the oral testimony of a witness. Allegations which are simply conclusions of law, whether sufficient or not as matter of pleading, are incompetent as testimony." (Olmstead v. Koester, 14 Kan. 463.) See, also, City of Atchison v. Bartholow, 4 Kan. 124; Center Township v. Hunt, 16 id. 430. ...