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60 Ill. App. 475

King v. Pardridge

Appellate Court of Illinois

Decided November 18, 1895

Appellate Court of Illinois · decided 1895-11-18

<p>1. Equity Practice—Improper Verification of the Bill. —An affidavit in verification of a bill in chancery by the agent of the complainant, stating that he has read the bill of complaint and knows the contents thereof, and knows the same to be true of his own knowledge, except as to such matters and things as are therein stated to be upon his information and belief, and as to those things so stated, he believes them to be true, is insufficient.</p> <p>2. Injunctions—Insufficient Affidavits for Granting Without Notice. —An affidavit attached to a bill for an injunction made by the agent of the complainant, stating that he is advised and informed, and so states the fact to be, that the rights of the complainant will be unduly prejudiced, if the injunction in this cause is not issued immediately, and without notice, to the defendant, is not sufficient to entitle the complainant to an injunction without notice.</p> <p>8. Same—Issuing Without Notice—Insufficient Affidavits.—A mere statement of a conclusion in an affidavit is not sufficient to make it appear that the complainant will be unduly prejudiced if an injunction is not issued without notice. It is the court, judge or master to whom that conclusion is to appear, and the facts from which it is to be drawn should be stated to the court, judge or master.</p>

Cited by 2 later decisions — most recently October 1896

2 state decisions

Relies on Brough v. Schanzenbach

Good law ✅— No negative treatment on recordhow we know

Order reversed · Decided 1895-11-18

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Mr. Justice Waterman

¶1delivered the opinion of the Court.

¶2The verification of this bill is by E. J. Walsh, who states that he is the agent of the complainant therein named, Edwin Pardridge; that he has read the foregoing bill of complaint and knows the contents thereof and knows the same to be true of his own knowledge, except as to such matters and things as are therein stated to be upon his information and belief, and as to those things so stated he believes them to be true.

¶3As the charges in the bill are made by Edwin Pardridge, who therein “ represents ” that various matters exist, the affidavit in effect is that Walsh knows that Pardridge represents certain things to be as set forth in the bill; with the exception as to those matters as “ are therein stated to be upon {his ’ information and belief; ” that is, upon the information and belief of Walsh. As nothing in the bill is stated upon the information or belief of Walsh, the affidavit is in this regard meaningless.

¶4¡Nor was it made to appear that the rights of the complainant would be unduly prejudiced if an injunction was not issued without notice. What was made to appear was that E. J. Walsh was advised and informed and stated the fact to be that the complainant would be unduly prejudiced if “ the ” injunction in this cause “ is ” (were) not issued immediately and without notice to the defendant. This statement is a conclusion of the affidavit; neither to the master nor the court was thereby anything made to appeal save the conclusion of E. J. Walsh. It is to the court that the necessity for the issue of an injunction without notice must be made to appear, and facts from which the court can arrive at such conclusion should be set forth. Brough v. Schanzenbech, 59 Ill. App. 407.

¶5The order of the Circuit Court granting an injunction is reversed.

Gary, P. J.

¶6The affidavit of Walsh to dispense with notice of the application is in its fair construction an affidavit that Pardridge was advised, etc., which, if true, might better be sworn to by Pardridge himself. A pronoun grammatically refers to the last appropriate antecedent.

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