Jarret v. Koch

14 Ohio N.P. (n.s.) 92

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: February 15, 1913
• Status: Published

Opinion

Dickson, J.

Defendant complains that the plaintiff among other things in her prayer in her amended petition asks for- a temporary- injunction, without the necessary affidavit therefor being filed. Defendant asks that this be stricken out.

The General Code, Section 11875, provides:

‘ ‘ The injunction provided by this title is a command to relfrain from or do a particular act. It may be the final judgment in an action, or be allowed as provisional remedy. When so allowed it must be by order.”

Section 11876, General Code:

“When it appears by the petition that the plaintiff is entitled to the .relief demanded, and such relief, or any part of it, consists in restraining the commission or continuance of some act, the commission or continuance of which, during thé litigation, would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, or threatens or is about to do, or is procuring or suffering .to be done, some act in violation of the plaintiff’s'rights, respecting the subject of- action, and tending to render the judgment ineffectual', a temporary order may be granted, restraining the act. ” * *.

Section 11877, General Code

“At the beginning of an action, or at any time before judgment the injunction may be granted by * * * upon its apappearing to the court or judge by affidavit of the plaintiff, or his agent, that the plaintiff is entitled thereto. ’ ’

Section 11522, General Code:

“An affidavit is a written declaration under oath-made without notice to the adverse party.” * * *

Section 11523, General Code:

“An affidavit may be used to verify a pleading * * * or to obtain a provisional remedy. ” * * *

Section 11351, General Code:

“ ■* é * ' Nnd every pleading of fact (here follows certain explanations) must be verified by the affidavit of the party, his agent or' attorney.” '**"_*'

Section 11354, General Code:

' "■“■■The: affidavit--(to a. pleading)'- shall be sufficient if'.iths stated therein that the affiant believes the facts stated in the pleading to be true.” • ■ , ■■-,•. ■■.' ■■'

Remedy by injunction may be final, the end sought, the judgment ;' or provisional, that is, mere, temporary security during ■action to make the end, the judgment, worth while.

Where the end of the action, the judgment sought, is an injunction, the pleading may be verified as any other pleading, that is on belief, because the code says so, and because the proof, the foundation of the judgment, must be under oath positively, by affidavit, by deposition, by oral testimony, or by all three.

But where a provisional order is sought, a temporary injunction, the court must find upon an affidavit sworn to positively.

One does not seek a provisional remedy by a pleading, but by motion-supported by affidavit, testimony, and this affidavit must be sworn to positively. One may incorporate into a pleading a request for a security injunction — temporary restraining order —but if he do, the verification must be sworn to positifely, be equal to testimony. The verification oath as to belief, will not do. And if there be a request for a provisional remedy within a pleading not sworn to positively, it will be stricken out on motion as irrelevant.

An entry may be drawn granting the motion in this respect, and a new petition directed to be filed, corrected also as to findings as to the other matters made for the bench.