The St. Mary banner. (Franklin, Parish of St. Mary, La.) 1889-1931, 1906-04-07

said:
And We hold further, that eve
after the exception of no cause of az
ton Is filed, and before it is acted on
it was within the discretion of the tria
judy" to permit, as he did do, the iii
ing of an amended petition GOVERN!
the defect (as claim by defendant) al
| luded to- -.....
The courts are always favorable t,
amendments, especially where the,
tend to prevent multiplicity of suit
and can be considered without dOin.
an injustice to the parties litigant
| And in this case if there were no rea
son for refusing the supplemental pc
tition other than that it comes too
late or sets up other and different is
sues. | would have no hesitancv in al
lowing it. There Is. however, another
objection that 70 my mind, is far NOR,
serious than all else that is, the pc.
tition has not been sworn TO by all tn,
plaintiffs.
II j. MY appreciation of the law
that tn" supplemental petition for in
junction must be sworn to: that this is
Il prerequisite TO the courts consider
M i. Art. 3O4 Of the Code of Practice
provides that the petition for in unc-
lion must state under oath the facts
which according to his belief render
an injunction necessary.
This rule must apply as well to sup
pIrmental petitions Il, to original pc
titions. In the case of Richardson
-. Binkgran. Goth An. p. 6:5}. the
Supreme court of this State said:
The Judge did not err in refusing
IL allow the plaintiff to take judy
mrn1 hN default on the supplemental
petition which had been filed 10y her
on the 10Th ot August. 1873. in which
She sets forth additional reasons why
an Injunction should issue. The allie
cation, were not sworn to. Admit
ting that a supplemental petition to
an application for an injunction i,
pcrtni>sab bic, which is not necessary
for Us now to determine. still the truth
Of the allegation, in the supplemental
petition should be sworn to.
Ii tie 18th An. D. 7ll. in the case
of Ghambli>s v>. Miller. the court held
parties to the petition and adopted
all the allegations thereof. could not
b. considered as parties plaintiff for
The reason that they have never aken
he oath nor given bond required by
aw 20 obtain the writ of injunction
which ha, been sued out to arrest the
of the order of seizure anG
sale.
If the law requires that the supple
rental petition should be sworn to
and can find no law to the contrary,
/ is my opinion that the affidavit of
me of the plaintiffs i, not Il COM
'liance with the law: and for this rea
on. must refuse to allow the supple
mental petition.
This brings us to consider the objection
loted by plaintiffs to the documents and
Exhibits offered and filed by defendant in
Import of his answer and exceptions to
he RULE NISI.
The plaintiffs in argument commended
hat the right to this injunction must be |
determined by the face of their petition |
nd by the exceptions filed Ivy the defen |
ant: that the court cannot travel outside |
f the petition and the exceptions; that all |
latters of fact set up and sworn to in OPP
Osition to their petition, and all exhibits |
hould not be considered by the court in |
whether or not the plaintiffs |
re entitled to an injunction; while the de-
endant on the other hand, cOntended that |
he court is bound to look into and con-
der all the exhibits filed by him as part |
his answer.
There is no provision in the Code of
ractice for the issuance of the RULE
ISL. We must therefore look to the juris
rudence Of this State for the law govern
IL such proceedings. This question was
resented squarely to the Supreme Court |
this State in the case Of Heyniyer VS..
lOffung, 18th An. p. %, in which the ques-
on asked by the court was:
"What is the nature, purpose and scope
the RULE NISI:"
The answer was: 1.-The object OF the
lle nisi is to give an opportunity to
le defendant to show that an injunction
not allowable on the face of the papers.
r, in other words, that the facts and al
cations contained in the petition are not
Efficient to warrant the court i'll issuing
lie writ. examination OF the merits on
he trial OF that rule is premature"
On the other hand, in much later deci-
ons. the court, on the trial of the rule
Isl, considered evidence in determining
Re right to the writ. The case of Buck |
rule nisi issued by the district court, and
le defendant in rule answered. and filed,
nOng other pleas, that of res judicata.
he Supreme Court i'll considering the
ght to the Injunction. examined into the |
cord, pleadings and judgment in the two
iSeS that were pleaded as res Judicata. |
/ this latter case, however, 1t appears no
election was raised to the plea or to the
,urt considering the issues as rendered
Y the exception.
1t was ably III gued on the trial of this
lie that the face Of the papers, mean, |
lc face of the papers As presented by the
clifton. answer and annexed documents,
nj that all should be considered. To so
I'D. however. would be t. say that all the |
Legations Of the plaintiffs petition might
. rcbutted by evidence without giving
lem chance to maintain thelr alleya-
ons. II you open the door to this proof
to 60 into the trial Of the issues of tact
used in the application for the writ, you
e trying the merit, Of the case before
i,sing upon the plaintiffs right 10 the
junction In other words. you would is
lie the Injunction and perpetuate 1t in the
me Judgment, because If after a trial it |
iould be found that the writ should issue
would necessarily follow that it must be
,nf.r tad