Reboul's Heirs v. Behrens

5 La. 79 | La. | 1833

Martin, J.

delivered the opinion of the court.

The plaintiffs and appellants complain of the dissolution of the injunction and the dismissal of the suit, on the ground of the insufficiency of the affidavit.

The creditor who laizcdmderexe-twelve’ months bond, cannot re-sorttotheorigmal judgment, until ¡V3 has tlie property of su?o?y!n°irial ™d The affidavit for mast lm'sllchas to render the party liable to a conviction for perju-w, if the facta sworn to are not mie- itisillsufficient Sg afijmS", the material acts are true and cor-hu knowledge.,

The affiant swore, “that the material facts and allegations & in the said petition, are true and correct, to the best of his knowledge.”

His counsel has contended, that the oath for an injunction need not, and cannot be positive, its only object being to give prima facie evidence of the facts, in order to obtain a provisional order until the parties be heard. The applicant is sometimes bound to aver facts, which he cannot positively swear to. The negative must sometimes be sworn to; admitting the exception was available, the injunction was erroneously dissolved, as it appeared from the circumstances of the case, that on a new application another cannot immediately issue. 3 Martin’s JY. S. 480,4th ed. 499,2 La. Rep. 63. The plaintiffs’ property was illegally seized on a fieri facias against the purchaser and his surety on the twelve months bond; the creditor before he resorts to his original iudgment, ° J ° 7 being' bound to show that he has exhausted the property of ° x r 7 Martin’s JY. S. 205. the principal and sureties on the bond. The counsel of the appellees has contended the oath is insufficient, nothing being positive. Code of Practice 304, 1 Martin’s JY. S. 329. If the affidavit be set aside, nothing shows the verity of any allegation as the basis of a second injunction. The case shows facts on which the remedy is not by injunction, but opposition to the sale of the property seized. Code of Practice, 396 and 97.

In our opinion, the affidavit for an injunction, ought to be such as to submit the party to the penalties of perjury, if the _ - . _ 1 _ fácts sworn to appear to be otherwise. He should swear to avoid these penalties, that the facts stated, as within his knowledge, are true, and those not stated as within his knowledge he believes to be true. This is the case in the Courts of Chancery, or Equity, in the Atlantic states. Whether the loose mode of swearing to the best of one’s best knowledge and belief, be a sufficient abbreviation of the proper formula, we ought not to say, till a case before us require our decision. It appears to us, that a party who swears to the best of his knowledge, may easily avoid a conviction oi perjury, by showing he had so imperfect a knowledge of the facts sworn to, that he might be very easily mistaken if he swear ’ ° J J to what one person told him he heard another person assert. affidavit is in our opinion insufficient.

We are unable to say how another injunction could have issued regularly, after the dissolution of the first, on account of the sufficiency of the affidavit, until a new and sufficient one was made, which does not appear to have been the case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.