State ex rel. Register v. Patterson
| Decision Date | 23 January 1904 |
| Citation | 99 N.W. 67,13 N.D. 70 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh county; Winchester, J.
Action by the state, on the relation of George M. Register state's attorney, against Edward G. Patterson and Arthur E. McGahey. Judgment for plaintiff and defendants appeal.
Reversed in part.
Order of the district court denying appellants' motion reversed in part. Sustained in part. Appellants recovered costs.
J. G Hamilton and A. T. Patterson and Tracy R. Bangs, for appellants.
George M. Register and F. H. Register, for respondent.
Briefs substantially the same as in State ex rel. Register v McGahey, 12 N.D. 535, 97 N.W. 865.
This appeal is from an order of the district court of Burleigh county refusing to set aside an injunctional order, and also denying defendants' motion to set aside and vacate a search warrant and to dismiss all proceedings had thereunder in an action for the abatement of a liquor nuisance under section 7605, Rev. Codes 1899. The action has not been tried upon the merits, but is still pending. The complaint was verified by the state's attorney, to the effect that "the same is true to his best knowledge, information and belief." The summons, complaint, injunction, affidavit and search warrant were served upon the defendants at one time. The only affidavit accompanying the papers was attached to the search warrant and was also made by the state's attorney upon information and belief, and without setting up the sources of his information or its substance.
It is urged that the injunctional order is void, because not supported by an affidavit; that the injunction cannot be granted upon the complaint alone, but, if granted upon the complaint alone, the complaint must be sworn to positively; and that a verification on information and belief will not answer the statutory requirement. In this counsel are mistaken. The statute under which this action is brought permits the injunction to be granted at the commencement of the action in the usual manner of granting injunctions, except that the affidavit or complaint, or both, may be made by the state's attorney, attorney general, or his assistant upon information and belief, and no bond shall be required. Section 7605, Rev. Codes 1899.
The usual manner of granting injunctions at the beginning of the action is prescribed by sections 5343-5345, Rev. Codes 1899. Under this statute, when it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff, the injunction may be granted at the commencement of the action; but, when granted on the complaint alone, the facts relied on must be stated, in positive and direct terms, as being within the plaintiff's personal knowledge. Allegations on information and belief are insufficient. The complaint must also be verified positively and not in the usual form of verification. Such is the holding in New York, from which our statute as to procedure in injunction cases is taken. Roome v. Webb, 3 How. Pr. 327; Smith v Reno, 6 How. Pr. 124; Levy v. Ely, 15 How. Pr. 395; Hecker v. Mayer, 28 How. Pr. 211; Id., 18 Abb. Prac. 369; Woodruff v. Fisher, 17 Barb. 224; Bostwick v. Elton, 25 How. Pr. 362; Cushing v. Ruslander (Sup.) 1 N.Y.S. 505; sections 603, 604 and 607, Stover's Code Civ. Proc. N. Y. And such is the general rule. 10 Enc. Pl. & Pr. 929, and cases cited. Where the averments of...
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