Wiles v. Northern Star Mining Co.

SULLIVAN, J.

This appeal is from an order denying defendants’ motion for the dissolution of a preliminary injunction. The complaint was filed on the ninth day of January, 1906. On the 11th of the following April a summons was issued. On the twentieth day of April, upon the affidavit of W. N. Scales, Esq., an ex parte application was made for an injunction restraining the sheriff of Idaho county from issuing or delivering a sheriff’s deed on a certificate of sale upon execution issued out of said court, in a case in favor of H. S. Bominger, as trustee against the Northern Star Mining Company. A temporary injunction was granted upon said application and on said affidavit. On the twenty-fifth day of April an undertaking in the sum of $300 was filed in said injunction matter. The amount of said undertaking had not been required, fixed or specified by the judge or court. Said writ was upon that day served upon the sheriff. On the second day of March, 1907, the defendants in open court filed a notice of motion to dissolve said injunction. That motion was based upon said affidavit, or *329 der and undertaking.- The summons had not been served in said action. Voluntary' appearance was entered by all of the defendants except Plummer on September 22, 1906, and Plummer voluntarily appeared on the said motion to dissolve said injunction. No answer or affidavits were filed by said defendants. The motion for dissolution was based entirely upon the insufficiency of the plaintiff’s showing in support of their application for the injunction and upon the defects and irregularities in the proceedings upon which the injunction was predicated.

On March 4, 1907, said motion came on regularly to be heard in open court, and was argued by respective counsel and submitted, and on the seventh day of that month the court overruled said motion and refused to dissolve said injunction. This appeal is from the order denying said motion.

The main errors assigned are that the affidavit upon which the preliminary injunction was issued is insufficient, in that it is made upon information and belief, and that the affidavit shows that the affiant had no personal knowledge of the facts stated therein, and that the court or judge failed to fix the amount of or require an undertaking as provided by section 4291 of the Revised Statutes.

The affidavit was made by one of the attorneys for the plaintiffs, and is as follows:

“W. N. Seales, being duly sworn, says that he is one of the attorneys for the plaintiffs in the above-entitled action.

“That from a statement of the case made to him he verily believes the plaintiffs have a good cause of action, and the verified complaint on file, a copy , of which is hereto attached and made a part of this affidavit, is true.

“That the judgment in the above-entitled action mentioned, obtained against the defendant, the Northern Star Mining Company, show by the records to have been obtained as set out in said complaint in said above-entitled action; that the exhibits are true copies of the documents they purport to be, as set out in said complaint; that an injunction *330 is necessary, pending the decision in the above-entitled action, to protect the rights of the plaintiffs.

“W. N. SCALES.”

The affiant swears that from a statement of the ease made to him, he verily believes that plaintiffs have a good cause of action. He does not even state by whom such statements were made; he does not show any reason whatever why the affidavit was not made by one of the plaintiffs. The affidavit is clearly insufficient. We do not mean to hold that an injunction may not be issued upon an affidavit sworn to upon information and belief if the source of the information is set forth and it is shown why the person knowing the facts cannot be procured to make the affidavit. Under the provisions of section 4199, when the pleading, is verified by the attorney or any other person except one of the parties, he must set forth in the affidavit the reason why it is not made by one of the parties. So we think when an affidavit is made for the purpose of procuring an injunction, the one who knows the facts should make the affidavit if he can be procured to do so, and if he cannot and the affidavit is made by the attorney, the reasons why he makes the affidavit should be fully set forth and the affidavit should show why the party who personally knows the facts does not make the affidavit. The affidavit in this case is not sufficient to warrant the granting of an injunction.

The second question presented is as to the failure of the judge to require a written undertaking on the part of the plaintiff. Section 4291, Revised Statutes, provides: “On granting an injunction the court or judge must require .... a written undertaking on the part of the plaintiff with sufficient sureties,” etc. But it is contended by the respondent that the order was drawn fixing the bond in the sum of $300, and that when the judge signed the order, he made some interlineations and inadvertently erased the amount of the bond. A certified copy of the bond is before us and shows certain erasures. We also have the certificate of the judge in regard to this question being raised on the motion to dissolve the injunction, but he nowhere certifies that he inadvertently *331 erased that part of the order fixing the amount of the bond. The provisions of said section 4291 are mandatory, and this court has held in Price v. Grice, 10 Idaho, 433 , 79 Pac. 387 , that it was error to grant a temporary injunction without requiring a proper undertaking.

For the reasons above given, the decision of the court denying appellants’ motion to dissolve the injunction must be reversed, and it is so ordered, and the cause is remanded with instructions to grant said motion. Costs of this appeal are awarded to the appellants.

Ailshie, C. J., concurs.