M.K. T. Ry. Co. v. Pietzsch

10 Citing cases

  1. Nagelson v. Fair Park Nat. Bank

    351 S.W.2d 925 (Tex. Civ. App. 1961)   Cited 16 times

    St. Paul Fire Marine Ins. Co. v. Earnest, Tex.Civ.App., 293 S.W. 677 (Syls. 26 27); Scudder v. Burrus Mill Elevator Co., Tex.Civ.App., 285 S.W. 681; Graves v. M. Griffin O'Neil Sons, Tex.Civ.App., 189 S.W. 778; Abilene Ind. Tel. Tel. Co. v. Southwestern Tel. Tel. Co., Tex.Civ.App., 185 S.W. 356; Smith v. Banks, Tex.Civ.App., 152 S.W. 449; Moss v. Whitson, Tex.Civ.App., 130 S.W. 1034; Missouri K. T. Ry. of Texas v. Pietzsch, 10 Tex. Civ. App. 572 [ 10 Tex. Civ. App. 572], 30 S.W. 1083; Spinks v. Matthews, 80 Tex. 373, 15 S.W. 1101; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; 2 Tex.Jur.2d 416. The purported controverting affidavit is defective for other reasons.

  2. Webb v. Texas Christian University

    48 Tex. Civ. App. 264 (Tex. Civ. App. 1907)   Cited 7 times

    In the case of Hunt v. Atchison, Topeka Santa Fe Ry. Co., 28 S.W. 460, the point made was not the same as in the case under consideration, but was as to whether or not the facts contained in the affidavit might be sworn to by any person other than an agent of the plaintiff. In the case of Missouri, K. T. Ry. Co. of Texas v. Pietzsch, 10 Texas Civ. App. 572[ 10 Tex. Civ. App. 572], it was held that a plea alleging want of notice was not sufficiently verified by an affidavit that as to the statements made therein "I am reliably informed and verily believe them to be true." Such affidavits in the cases above referred to and cited by counsel for appellant, are not equivalent, in our judgment, to the one in question, where the affiants swear in fact that all the allegations of said petition, "not made upon information and belief, are true," and those made upon information and belief, they verily believe to be true; and where the record, as in the present case, shows that only two matters are stated in the petition upon information and belief, and all others appear to be affirmatively stated, then it must be held that the parties making the affidavit swore positively to the truth of the facts contained in said petition, with the two exceptions; and where these exceptions are as to immaterial matters, and can be eliminated, leaving a sufficie

  3. Baumert v. Porter

    414 S.W.2d 527 (Tex. Civ. App. 1967)   Cited 1 times

    St. Paul Fire Marine Ins. Co. v. Earnest, Tex.Civ.App., 293 S.W. 677 (Syls. 26 27); Scudder v. Burrus Mill Elevator Co., Tex.Civ.App., 285 S.W. 681; Graves v. M. Griffin O'Neil Sons, Tex.Civ.App., 189 S.W. 778; Abilene Ind. Tel. Tel. Co. v. Southwestern Tel. Tel. Co., Tex.Civ.App., 185 S.W. 356; Smith v. Banks, Tex.Civ.App., 152 S.W. 449; Moss v. Whitson, Tex.Civ.App., 130 S.W. 1034; Missouri K. T. Ry. of Texas v. Pietzsch, 10 Tex. Civ. App. 572, 30 S.W. 1083; Spinks v. Matthews, 80 Tex. 373, 15 S.W. 1101; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; 2 Tex.Jur.2d 416. * * * "Appellant in his supplemental brief asserts that appellee made no challenge at

  4. Butler v. Remington

    230 S.W. 224 (Tex. Civ. App. 1921)   Cited 6 times

    This affidavit must state that the facts upon which the applicant relies to sustain his injunction are true, and an affidavit upon information and belief is insufficient. Wilson v. Adams, 15 Tex. 323; Pullen v. Baker, 41 Tex. 419; Graham v. McCarty, 69 Tex. 324, 7 S.W. 342; Railway Co. v. Pietzsch, 10 Tex. Civ. App. 572, 30 S.W. 1083; Clarey v. Hurst, 136 S.W. 840; Smith v. Banks, 152 S.W. 449; Foresty Oil Co. v. Wilson, 178 S.W. 628; Kopplin v. Ludwig, 170 S.W. 105; Ginther v. De Zabalgoitio, 170 S.W. 793. The form of the affidavit may be questioned for the first time on appeal.

  5. Lingwiler v. Lingwiler

    204 S.W. 785 (Tex. Civ. App. 1918)   Cited 8 times

    hall present his petition to the judge, verified by affidavit, and this statute nas not been complied with in an affidavit which shows that the affiant swore to the facts set up in the petition upon information or belief. This court had occasion in the recent case of Graves v. M. Griffin O'Neil Sons, 189 S.W. 778, to pass upon an affidavit for injunction similar to the one here in question, and we there pointed out that the test of the sufficiency of the verification required by the statute referred to, according to the decision of the appellate courts of this state, is that "the affidavit of the facts sworn to must be so direct and unequivocal as that an indictment for perjury would lie, if the oath is falsely made," citing Pullen v. Baker, 41 Tex. 419; Moss v. Whitson, 130 S.W. 1034; Clarey v. Hurst, 136 S.W. 840; Smith v. Banks, 152 S.W. 449. That the affidavit must state the facts alleged are true, and that such statement must be positive and not based upon hearsay is affirmed in Railway Co. v. Pietzsch, 10 Tex. Civ. App. 572, 30 S.W. 1083. The affidavit to appellee's petition not being in compliance with the statute the injunction prayed for should have been refused.

  6. Graves v. M. Griffin O'Neil Sons

    189 S.W. 778 (Tex. Civ. App. 1916)   Cited 13 times

    It must be positive and not from hearsay. Railway Co. v. Pietzsch, 10 Tex. Civ. App. 572, 30 S.W. 1083. The test stated is not met by the affidavit made to appellant's petition, and the court erred in overruling appellee's demurrer.

  7. Abilene Indep. T. T. Co. v. S.W. T. T

    185 S.W. 356 (Tex. Civ. App. 1916)   Cited 15 times

    In Graham v. McCarty, 69 Tex. 324, 7 S.W. 342, it was held that an affidavit, to the effect that the facts set forth in a plea to the jurisdiction are true to the best of affiant's knowledge and belief, was insufficient. See, also, Railway Co. v. Pietzsch, 10 Tex. Civ. App. 574, 30 S.W. 1083; Forest Oil Co. v. Wilson, 178 S.W. 626, and authorities there-, in cited. In speaking of the verification of applications for receivers, High on Receivers (3d Ed.) ยง 89, says:

  8. Forest Oil Co. v. Wilson

    178 S.W. 626 (Tex. Civ. App. 1915)   Cited 10 times

    The term "verification," as applied to pleadings in equity practice, means that an affidavit must be attached to the plea that the facts therein stated are true. And it was held in Graham v. McCarty, 69 Tex. 324, 7 S.W. 342, that an affidavit that facts set forth in plea to jurisdiction are true to the best of affiant's knowledge and belief was insufficient; also in Railway Co. v. Pietzsch, 10 Tex. Civ. App. 575, 30 S.W. 1083, that an affidavit to defensive pleadings required to be under oath, to the effect that, "I am reliably informed and verily believe them to be true," is insufficient; that the affidavit must be positive and not hearsay. See Book III, Texas Notes, 893; Book V, Texas Notes, 1151.

  9. Clarey v. Hurst

    136 S.W. 840 (Tex. Civ. App. 1911)   Cited 16 times

    Nor was the petition properly verified, the affidavit being made by one of the attorneys, who states that the facts alleged are within his knowledge true and correct, upon information he had received from another person, and that he verily believes the same to be true. See article 2992, Rev. Stat.; Pullen v. Baker, 41 Tex. 419; M., K. T. Ry. Co. v. Pietzsch, 10 Tex. Civ. App. 572, 30 S.W. 1083. Believing that the district judge erred in granting the writ, his order is therefore set aside, and the injunction dissolved.

  10. Western Union Telegraph Co. v. Smith

    61 Tex. Civ. App. 531 (Tex. Civ. App. 1910)   Cited 7 times

    The verification or attempted verification of pleadings have been held bad in the following cases: Want of notice under this statute. "Reliably informed and verily believe" is bad. Missouri, K. T. Ry. Co. v. Pietzsch, 30 S.W. 1083. No affidavit is bad. Houston T. C. Ry. Co. v. Davis, 31 S.W. 309; Texas Tel. Tel. Co. v. Seiders, 29 S.W. 262; St. Louis S. F. Ry. Co. v. Honea, 84 S.W. 268.