168 Ind. 522 | Ind. | 1907
This suit was brought by appellee against the appellant for the appointment of a receiver for a growing peppermint crop on a farm belonging to appellant, upon which the appellee had formerly been a tenant. The only evidence at the hearing of the application for the appointment of a receiver was the verified complaint and an affidavit of appellee. Without notice to or appearance by appellant, the court appointed a receiver as prayed for. This is an appeal from said interlocutory order. Appellee’s verification of the complaint states that “all the statements in the complaint are true to the best of his knowledge and belief.”
In Catlett v. McDonald (1838), 13 La. 45, the court held insufficient to authorize an injunction, an affidavit that “all the material allegations in the foregoing petition are true to the best of his [the petitioner’s] knowledge and belief.” The facts should be positively sworn to, and ordinarily a verification upon information and belief is not received for this purpose. 2 High, Injunctions (4th ed.), §1567.
In Siegmund v. Ascher, supra, the affidavit was that “he has read said complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to matters stated on information and belief, and as to. those he believes it to he true.” The court said: “We have decided that this form of oath makes the whole answer on information and belief, as there is no way of distinguishing between matters so stated and those of which the complainant has knowledge. Deimel v. Brown [1890], 35 Ill. App. 303.”
In Burgess & Co. v. Martin (1895), 111 Ala. 656, the court said on page 657: “The allegations of the bill are sworn to by a person named ‘as true to the best of his knowledge, information and belief.’ This, upon the construction most favorable to complainants, means that the affiant has knowledge that some of the averments of the bill are true, that while he does not know he has been informed and believes that others of the averments are true and that, as to yet other averments, he has neither knowledge nor information, but, without knowing the facts' or ever having been informed of their truth, he believes them to be true; and whether any particular allegation of the bill is within one or the other of these three categories is wholly uncertain and unascertainable from this verification. But to construe the affidavit according to the general rule, most unfavorable to the party relying upon it, there is no room for affirmatively saying that it means anything more than the affiant believes that the allegations of the bill to be true, though he has neither knowledge nor information of their truth. Pickle v. Ezzell [1855], 27 Ala. 623; Dennis v. Coker [1859], 34 Ala. 611; Globe Iron Roofing, etc., Co. v. Thacher [1888], 87 Ala. 458, 6 South. 366.”
In City of Atchison v. Bartholow (1866), 4 Kan. 124, application was made to the judge of the district court in vacation for a temporary injunction, upon the hearing of which the only testimony adduced was the petition. The defendants objected to the reading of that paper as evidence, on the ground that the verification was only that the same was “true to the best of the knowledge, information
It is evident from the authorities cited that the verification of the complaint was insufficient and the same was not entitled to any weight as evidence at the hearing of said ex parte application for a receiver.
It was said in the case last cited: “When such notice can be given it should be given, unless there is imminent danger of loss, or great damage, or irrevocable injury, or the greatest emergency, or when by the giving of notice the
It is clear from the authorities cited that said affidavit does not show any reason for the failure to give notice of said application to appellant. The part in said affidavit showing the necessity for harvesting and distilling said mint without delay does not show any excuse for hot giving notice, because no excuse is offered or reason assigned why the application for a receiver was not made earlier, so that the same could be heard and determined , before it was •necessary to harvest and distill the mint. It is well settled that a party seeking an injunction or the appointment of a receiver cannot by his own delay or failure to act promptly create an emergency which will excuse his giving the required notice to the adverse party. Vance v. Workman (1846), 8 Blackf. 306, 308; Indiana, etc., R. Co. v. State (1852), 3 Ind. 421; Davis v. Fasig (1891), 128 Ind. 271, 277.
In Vance v. Workman, supra, this court held that a bill filed to enjoin a sheriff’s sale of real estate, filed on the day the sale was to take place, does not show an emergency for granting a restraining order without notice, no reason being given why the suit was not filed sooner.
In Indiana, etc., R. Co. v. State, supra, the court said: “The principle here asserted is, that the complaining party must not only show that an immediate injury is about to be inflicted, but also that he could not reasonably have anticipated it in time to give the requisite notice. Otherwise the complainant might always make a case of emergency, by waiting until the act he desires to have restrained is upon the point of being done.”
It follows that the court erred in appointing a receiver without notice. The interlocutory order appointing a receiver is therefore reversed.