Menifee v. Myers

33 Tex. 690

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Ogden, J.

An injunction was sued out by the defendant against the plaintiff in error, to restrain the collection of a judgment of the county court. The defendant below moved to dismiss the injunction for the reasons, among others, that the district court had no jurisdiction of the cause; that the petition showed no equity upon its face; and that the petition for the injunction was not sworn to.

The injunction was granted in violation of Article 3929, Paschal’s Digest,, which reads as follows: “ All petitions for injunctions and answers thereto shall be verified by the oath or affirmation of the party filing the same.” The petition was not sworn to and should have been dismissed, on motion of the defendant, at any time before the trial upon the merits. The petition upon its face showed that the plaintiff had no equitable right to an injunction, as he had failed to set up his defense to the note, if he had any, in the county court, or had failed to bring his case to the ■district court by certiorari. or appeal. But it appears from the record that the district court overruled the defendant’s motion to dismiss the injunction, and so far as the record informs us, entered a decree perpetuating the same, without any evidence whatever to ■sustain the allegations of the petition. This was certainly erroneous, and must be corrected.

The judgment of the district court is therefore reversed, and the injunction dismissed, and it is ordered that the defendant in error pay all costs of this court and of the court below.

Reversed and dismissed.’