This is аn appeal from an interlocutory order granting a temporary injunction restraining T. Wesley Hook and J. S. Scarborough, sheriff of Kleberg county, from proceeding tо sell certain woodworking machinery under an order of sale issued out of the county court of Kleberg cоunty. The injunction was applied for by AY. Payne, who alleged that he had purchased said property at a sаle# made by R. F. Watt, receiver of the Kingsville Planing Mill & Manufacturing Company, a corporation; said sate having been made under order of the district court of Kleberg county, duly entered in case No. 23, styled Don Payne et al. v. Kingsville Planing Mill & Manufacturing Company, in which case such receiver had been duly appointed. Plaintiff alleged that thе sate had been confirmed by said district court, and he had paid the purchase price, but upon apрeal the order of confirmation was reversed, and the cause remanded, with instructions to hear evidenсe on the allegations made in opposition to the confirmation of the sale. He further alleged that another hearing on the matter of confirmation of the sate would not take place until in May, 1916.
We deem it unnecessary to state more fully the allegations оf the petition because we conclude that thе same is not verified as required by statute, and for that reason the court erred in granting the same. The petition is signеd, “Pope & Sutherland, Attorneys for Plaintiff.” The affidavit was madе by I-I. R. Sutherland, who does not, in such affidavit, describe himself as еither the agent or attorney of the plaintiffs. In the case of Willis v. Lyman,
“The petition, in the present case, is signed by ‘Fly & Fly, Attorneys for Plaintiffs,’ and the affidavit is made by B. F. Fly, who does not, in the affidavit, describe himself as either the agent or the attorney of thе plaintiffs. The court cannot know that the person who makes the affidavit is one of the persons who signed thе petition as attorneys for the plaintiffs; nor will the cоurt look to the records, in the original suit, to. find information whiсh ought to bo contained in the affidavit itself.”
In the case of Cherryhomes v. Carter,
“When an affidavit is made, in the course of a judicial proceeding, by one person in behalf of another, his authority to do so should be made to appear in some way frоm the record, or it will not serve in the place of the oath of the proper party.”
In this case therе is nothing in the petition or affidavit to show that the H. P. Sutherland, who made the affidavit, is the Sutherland who is a member of the firm оf Pope & Sutherland, and, therefore, in view of the defeisions above mentioned, we hold that the affidavit is not suffiсient.
The order of the district judge granting the temporary injunсtion is reversed, and judgment here entered refusing the application, and dissolving the injunction.