Smiley v. Fulda

2 Cal. Dist. Ct. 84

• Court: San Fransisco District Court
• Decided: December 15, 1857
• Status: Published

Opinion

Hager, J.

— By the statute law of this state, Practice Act section 113, an injunction may be granted if it is satisfactorily shown by a verified complaint, or by affidavits, that sufficient grounds exist therefor.

The allegation in this complaint, charging fraud and collusion between defendants, Fulda and Trieste, and which are relied upon as disclosing sufficient grounds for .the issuing as well as continuing the injunction, are solely upon information and belief, and are unsupported by the names or affidavits of the parties from whom the information was derived.

According to the rule, of pleading in equity, in order to obtain an injunction, the essential and material allegations of the complaint should be positively sworn to; or if they are upon information and belief, they should be supported by the affidavit of the parties from whom the information was derived, or the absence of those should be satisfactorily explained.

Here, for want of proper information of the persons who informed plaintiff, the defendant is unable to inquire into the truth of the allegations, or to contradict them by his answer of other affidavits.

I am of the opinion that it is not satisfactorily shown by the complaint, that sufficient grounds exist for the issuing or continuing the injunction. Injunction dissolved.