Empire Guano Co. v. Jefferson Fertilizer Co.

Supreme Court of Alabama

Empire Guano Co. v. Jefferson Fertilizer Co.

45 So. 657, 154 Ala. 409, 1908 Ala. LEXIS 532

Supreme Court of Alabama·Decided February 4, 1908·Published·Cited by 1 cases

Opinion

ANDERSON, J.

Whether the oath is waived by bill or not, the answer must be sworn to before an injunction will he dissolved upon the denials of same. — Buie 32, Chancery Practice (Code 1896, p. 1209) ; Mobile & Montgomery R. R. v. Alabama Midland R. R. Co., 123 Ala. 145, 26 South. 324. The affidavit to the answer in the case at bar is subject to some of the same infirmities pointed out by the court to the affidavits in the cases of M. & M. R. R. Co. v. Ala. Midland Co., supra, and Neihaus v. Cooke, 134 Ala. 223, 32 South. 728. Nor is it aided by the averments of the answer, which fail to show that the affiant had kno wledge of or was acquainted with the material facts stated.

The fact that the bill and affidavit thereto may be subject to some of the points of criticism which have been made to the answer did not authorize a dissolution of the injunction upon an imperfect verification of the answer. The rule is mandatory, and says: “Before a motion can he entertained to dissolve an injunction upon the denials in the answer of the equity of the bill, the answer must be sworn to, whether an answer under oath is waived in the bill or not.” — Hart v. Clark, 54 Ala. 490. If the affidavit to the bill was insufficient, the defect should have been pointed out at the proper time, and a failure by the complainant to do so did not enable it to [412]*412dissolve tbe injunction upon an insufficiently verified answer. — Jacoby v. Goetter, Weil & Co., 74 Ala. 427.

The case of Hogan v. Branch Bank, 10 Ala. 485, Avas overruled in Griffin v. Bank, 17 Ala. 258. But, if not in respect to this particular point, it cannot be considered as an authority against the present holding, as Ave did not at that time have rule 32, above quoted. The chancellor erred in dissolving the injunction, and the decree of the chancery court is reversed, and one is here rendered reinstating same.

Reversed and rendered.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

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ANDERSON, J.

Whether the oath is waived by bill or not, the answer must be sworn to before an injunction will he dissolved upon the denials of same. — Buie 32, Chancery Practice (Code 1896, p. 1209) ; Mobile & Montgomery R. R. v. Alabama Midland R. R. Co., 123 Ala. 145, 26 South. 324. The affidavit to the answer in the case at bar is subject to some of the same infirmities pointed out by the court to the affidavits in the cases of M. & M. R. R. Co. v. Ala. Midland Co., supra, and Neihaus v. Cooke, 134 Ala. 223, 32 South. 728. Nor is it aided by the averments of the answer, which fail to show that the affiant had kno wledge of or was acquainted with the material facts stated.

The fact that the bill and affidavit thereto may be subject to some of the points of criticism which have been made to the answer did not authorize a dissolution of the injunction upon an imperfect verification of the answer. The rule is mandatory, and says: “Before a motion can he entertained to dissolve an injunction upon the denials in the answer of the equity of the bill, the answer must be sworn to, whether an answer under oath is waived in the bill or not.” — Hart v. Clark, 54 Ala. 490. If the affidavit to the bill was insufficient, the defect should have been pointed out at the proper time, and a failure by the complainant to do so did not enable it to [412]*412dissolve tbe injunction upon an insufficiently verified answer. — Jacoby v. Goetter, Weil & Co., 74 Ala. 427.

The case of Hogan v. Branch Bank, 10 Ala. 485, Avas overruled in Griffin v. Bank, 17 Ala. 258. But, if not in respect to this particular point, it cannot be considered as an authority against the present holding, as Ave did not at that time have rule 32, above quoted. The chancellor erred in dissolving the injunction, and the decree of the chancery court is reversed, and one is here rendered reinstating same.

Reversed and rendered.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

Empire Guano Co. v. Jefferson Fertilizer Co., 45 So. 657, 154 Ala. 409, 1908 Ala. LEXIS 532 (Ala. 1908).

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