99 N.W. 67 | N.D. | 1904
Lead Opinion
This appeal is from an order of the district court of Burleigh county refusing to set aside an injunctional order, and also delaying defendants’ motion to set aside and vacate a search warrant and to dismiss all proceedings had thereunder in an action for the abatement of a liquor nuisance under section 7605, Rev. Codes 1899. The action has not been tried upon the merits, but is still pending. The complaint was verified by the state’s attorney, to the effect that “the same is true to his best knowledge, information and belief.” The summons, complaint, injunction, affidavit and search warrant were served upon the defendants at one time. The only affidavit accompanying the papers was attached to the search warrant and was also made by the state’s attorney upon information and belief, and without setting up the sources of his information or its substance.
It is urged that the injunctional order is void, because not supported by an affidavit; that the injunction cannot be granted upon the complaint alone, but, if granted upon the complaint alone, the
The usual manner of granting injunctions at the beginning of the action is prescribed by sections 5343-5345, Rev. Codes 1899. Under this statute, when it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during che litigation would produce injury to the plaintiff, the injunction may be granted at the commencement of the action; but, when granted on the complaint alone, the facts relied on must be stated, in positive and direct terms, as being within the plaintiff’s personal knowledge. Allegations on information and belief are insufficient. The complaint must also be verified positively and not in the usual form of verification. Such is the holding in New York, from which our statute as to procedure in injunction cases is taken. Roome v. Webb, 3 How. Prac. 327; Smith v. Reno, 6 How. Prac. 124; Levy v. Ely, 15 How. Prac. 395; Hecker v. Mayer, 28 How. Prac. 211; Id., 18 Abb. Prac. 369; Woodruff v. Fisher, 17 Barb. 224; Bostwick v. Elton, 25 How. Prac. 362; Cushing v. Ruslander (Sup.) 1 N. Y. Supp. 505; sections 603, 604 and 607, Stover’s Code Civ. Proc. N. Y. And such is the general rule. 10 Enc. Pl. & Pr. 929, and cases cited. Where the averments of the complaint are thus stated and verified, the complaint itself is an affidavit. This usual manner of granting injunctions is varied, in actions to abate liquor nuisances, by the exceptions before mentioned, so that when the affidavit or complaint, or both, is made by the state’s attorney, as in this case, it may be made on information and belief. The motion to set aside the injunction was therefore properly overruled.
It is further urged that the search warrant issued in this case and all proceedings thereunder were illegal, and that the trial court erred in refusing to vacate and set the same aside. The state’s attorney presented to the court an affidavit, signed and sworn to by
That part of the order of the district court denying appellants’ motion to set aside the search warrant and proceedings thereunder is reversed. In so far as such order denied appellants’ motion to dissolve the injunction, it is sustained. Appellants will recover costs.
Rehearing
ON REHEARING.
The petition of the state’s attorney of Burleigh county for a rehearing in this case is denied. No point in the opinion is criticised, but he insists that some order should be made as to the disposition of the property seized under the search warrant. This matter is not before us. The motion under review was to set aside the search warrant and all proceedings under it. It did not ask that the property be returned. The warrant under which the sheriff made search and seizure was void. It afforded him no protection. His acts were as if done without any warrant whatever. ■ It cannot be looked to in any sense as a justification for an unlawful seizure or withholding .of property. That he dispossessed another of his property unlawfully is patent, but the question whether the beer can be held as evidence against the appellant in the main action, notwithstanding the unlawful means by which the ■ law officer secured its possession, is not for us to determine upon this record.
