Marks v. Weinstock, Lubin & Co.

BELCHER, C. Upon filing the complaint in this case a preliminary injunction was issued, restraining the defendant from placing or maintaining on the sidewalk of a street in the city of Sacramento a certain obstruction, alleged to have been placed and kept there by defendant maliciously and to the prejudice and ■damage of the plaintiff. The complaint was duly verified - and [54]stated facts sufficient to entitle the plaintiff to the relief demanded.

Without filing any answer, the defendant moved the court to dissolve the injunction upon several grounds. After a hearing the motion was denied, and from that order this appeal is prosecuted.

The motion was based upon two affidavits which were introduced and read by defendant at the hearing, one made by-James Seadler and the other by A. Bonnheim.

The affidavit of Seadler is of no importance, as it simply states the extent of the sidewalk occupied by the obstruction complained of, as alleged in the complaint.

The affidavit of Bonnheim, after stating that he is the secretary of defendant and makes the affidavit for and on behalf of defendant, consists alone of admissions, denials, and allegations as to the facts of the case. It first states that he, the affiant, admits many of the material allegations of the complaint and then proceeds to state at length what the defendant denies an'd alleges. For example, it is said: “And the defendant denies that it has placed the said structure or showcase upon the said sidewalk maliciously,” etc., and “the defendant alleges, on the contrary, that the structure or showcase was constructed by it and placed upon said sidewalk lawfully and for a legitimate purpose,” etc. And it is also said: “And defendant further alleges that” in June, 1894, the board of trustees of the city of Sacramento adopted an ordinance, a copy of which is set out, which authorized and justified its action.

We fail to see how this affidavit can subserve the purposes of the defendant. It is not an answer and cannot take the place of an answer. Clearly, the affiant had no power to admit, deny,, or allege any fact, and until an answer was filed how could he-know what defendant admitted, denied, or alleged? An affidavit is simply and only written proof, taken ex parte, of the facts-stated in it; and, as in giving oral testimony, the facts stated should be probative, and not ultimate facts or conclusions. We-think it must be held, therefore, that the said affidavit was not sufficient to prove the facts attempted to be proved thereby, or. to sustain the defendant’s motion.