Herron v. De Bard

28 Tex. 602

• Court: Texas Supreme Court
• Decided: December 15, 1866
• Status: Published

Opinion

Coke, J.

—The answer, under oath,- of the defendant in error to the petition for injunction is full and explicit, and denies all its material allegations. The indebtedness of He Bard to Peel, charged in the petition and alleged to have been transferred to plaintiff in .error, and the insolvency of He Bard as charged, are distinctly denied.

These averments presented the only ground shown by the petition entitling the plaintiff in error to the injunction. A denial of/the truth of either of them would have been sufficient to sustain the "motion, to dissolve. The whole case of the plaintiff in error is denied by the answer of the defendant. It is not perceived that the counter affidavit of the plaintiff in error adds anything to the equity, or in any way gives additional strength to his petition. This affidavit does not controvert the truth of that portion of the answer which denies the indebtedness to Peel, nor that portion of it which denies the insolvency of He Bard, and by failure to do so rather strengthens the force of the denials. Ho objection appears to have been made on the trial to the admission of this affidavit. "Whether it was properly Admitted is therefore not a question before us for decision,

The injunction was properly dissolved on defendant’s motion. There is no error in the judgment, and it is affirmed. (Minturn v. Seymour, 4 Johns., 173; Lively v. Bristow, 12 Tex., 60.)

Judgment affirmed.