Williams v. Mathewson, (N.H.) 60 A. 688; Streator v. Linscott, (Calif.) 95 P. 42; Wilkening v. Wolff, 220 S.W. 598. The affidavit in support of the petition is insufficient to support the issuance of an injunction, Howard v. Eddy, (Kans.) 43 P. 1133; Power v. Village, 2 N.E. 609.
" To a like import are the following cases not cited in the opinion mentioned: Robertson v. Economy Plumbing Co. (Tex.Civ.App.) 269 S.W. 481; Gray v. S. T. Woodring Lumber Co. (Tex.Civ.App.) 197 S.W. 231; Wilkinson v. Lyon (Tex.Civ.App.) 207 S.W. 638; Wilkening v. Wolff (Tex.Civ.App.) 220 S.W. 598; West Texas Abstract Guaranty Co. v. Stolte (Tex.Civ.App.) 256 S.W. 632. By article 25, Revised Civil Statutes of 1925, it is provided: "All oaths and affirmations shall be administered in the mode most binding upon the conscience of the individual taking same and shall be subject to the pains and penalties of perjury."
It is further contended in this connection that the petition in each case is specifically deficient when viewed in the light of the well-settled rule applicable to petitions for injunctions, to the effect that the "averment of material and essential elements must be sufficiently certain to negative every inference of the existence of facts under which plaintiff would not be entitled to the relief." Gills v. Rosenheimer, 64 Tex. 246; Birchfield v. Bourland (Tex.Civ.App.) 187 S.W. 422; Grayson County v. Harrell (Tex.Civ.App.) 202 S.W. 160; Miller v. Ballinger (Tex.Civ.App.) 204 S.W. 1173; Emde v. Johnson (Tex.Civ.App.) 214 S.W. 575; Wilkening v. Wolff (Tex.Civ.App.) 220 S.W. 598; Johnson v. Ferguson, 55 S.W.2d 153, by this court. The general rule that as against a general demurrer every reasonable intendment is indulged in favor of the sufficiency of the pleading is not applicable to petitions for injunction as held by the above authorities.
There, the rule is that "the averments of material and essential elements must be sufficiently certain to negative every inference of the existence of facts under which petitioner would not be entitled to relief." Gillis v. Rosenheimer, 64 Tex. 246; Birchfield v. Bourland (Tex.Civ.App.) 187 S.W. 422; Grayson County v. Harrell (Tex.Civ.App.) 202 S.W. 160; Miller v. Ballinger (Tex.Civ.App.) 204 S.W. 1173; Emde v. Johnson (Tex.Civ.App.) 214 S.W. 575, 578 (error refused); Wilkening v. Wolff (Tex.Civ.App.) 220 S.W. 598. Manifestly this rule should apply where the sole basis of the trial court's order is the allegations of the petition, which in such event perform the functions of both pleading and evidence.
Eccles v. Daniels, 16 Tex. 137; Edrington v. Allsbrooks, 21 Tex. 186; Pullen v. Baker, 41 Tex. 419; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; Spinks v. Mathews, 80 Tex. 373, 15 S.W. 1101; Moss v. Whitson (Tex.Civ.App.) 130 S.W. 1034; Lane v. Jones (Tex.Civ.App.) 167 S.W. 177; Southern Oil Co. v. Mexia Oil Co. (Tex.Civ.App.) 186 S.W. 446; Graves v. O'Neil (Tex.Civ.App.) 189 S.W. 778; Lingwiler v. Lingwiler (Tex.Civ.App.) 204 S.W. 785; Wilkinson v. Lyon (Tex.Civ.App.) 207 S.W. 638; Wilkening v. Wolff (Tex.Civ.App.) 220 S.W. 598; Butler v. Remington (Tex.Civ.App.) 230 S.W. 224. The defect in the affidavit was called to the attention of the trial judge in the motion to dissolve the injunction.
the effect that the statements of the appellant for injunction are to be taken most strictly against himself, and must negative every reasonable inference arising out of the facts stated from which it might be concluded that, under other supposable facts connected with the subject he would not be entitled to the relief sought; (2) the duly verified answer of the appellants controverting all the material allegations of the petition for injunction put them at issue, took from the court the right to grant the writ upon the pleading alone, and required the applicants to sustain their averments by proof. The leading authorities cited in support of the first position are Graham v. Knight (Tex. Civ. App.) 222 S.W. 326; Edmonson v. Cummings (Tex. Civ. App.) 203 S.W. 428; Emde v. Johnson (Tex. Civ. App.) 214 S.W. 575; Oriental Oil Co. v. San Antonio (Tex. Civ. App.) 208 S.W. 177; Texas Nov. Co. v. Bay Trad. Co. (Tex. Civ. App.) 206 S.W. 729; White v. McFaddin (Tex. Civ. App.) 209 S.W. 766; Wilkening v. Wolff (Tex. Civ. App.) 220 S.W. 598 — while those under the second are Trimble v. Hawkins (Tex. Civ. App.) 197 S.W. 224; Murphy v. Smith, 38 Tex. Civ. App. 50, 84 S.W. 678; Daniels v. Daniels (Tex. Civ. App.) 127 S.W. 569; Riggs v. Winterode, 100 Md. 439, 59 A. 762; Boykin v. Patterson (Tex. Civ. App.) 214 S.W. 611, 613; Houston Elec. Co. v. Mayor of Houston (Tex. Civ. App.) 212 S.W. 198, 22 Cyc. 945. Under the facts appearing and the cases cited, the first objection of appellants is clearly well taken, but for the reason hereinafter given we are not justified in passing upon the second one merely upon the mutual assertion of the parties on appeal that the trial court considered appellants' answer and appellee's supplemental petition in acting upon the application for the writ, notwithstanding their bearing date one day later than the date appearing in its order.