
    Boatner v. Walker & Al.
    An affidavit, stating that all tho material allegations in the foregoing petition are just and true, and that the facts are such as in the opinion of the affiant authorize the issuing of an injunction, is insufficient to support the injunction. — 13 L. 46; 14 L. 87.
    The materiality of facts and their sufficiency to sustain an injunction, are matters of law, which must be decided on by the court
    Appeal from the court of the third district for the parish of East Feliciana, the judge thereof presiding.
    This is an injunction case. The plaintiff alleges, that he is the owner of a certain judgment and twelve months’ bond taken under it, in the name of Charles Gardiner against Millican and others, on which execution has issued at the instance of Gardiner & Go., and the sheriff is now proceeding to sell property and make the money. He prays for an injunction restraining the execution of said judgment, and enjoining the sheriff and Gardiner from proceeding therein.
    At the foot of the petition the plaintiff made his affidavit, which is copied into the opinion of this court.
    The defendant, Gardiner, appeared by counsel and filed written grounds for its dissolution, because of the insufficiency of the affidavit, and other causes.
    On hearing the parties, the district judge dissolved the injunction, with damages, interest and costs. The plaintiff appealed.
    
      Lcrnson and Lyons for the plaintiff and appellant.
    
      T. L. Andrews contra.
   Bttllakd, J.

delivered the opinion of the court.

This case turned in the court below, upon the insufficiency of the-affidavit npsn which the injunction was granted on a motion to dissolve it on that and several other grounds. The plaintiff made oath “that all the material allegations in the foregoing petition are just and true; that he obtained the judgment aforesaid, against Morgan & Oarlin and Babcock; that the note [462] was renewed and that Oharles Gardiner brought suit on it, and obtained a judgment, and that subsequently this affiant had it levied on and at the sheriff’s sale bought it, and that the sheriff’ has property under seizure, and will proceed to make the money, and pay it over to the said Oharles Gardiner, unless enjoined, &c., and that the facts are such as in the opinion of the affiant authorize the issuing of the injunction.”

The first and last clauses of this affidavit, to ivitpihat. the mat&i'ial facts are true, and that they are such as in the opinion of the affiant rendex an injunction proper, are clearly insufficient. The materiality of the facts, and their insufficiency to authorize an injunction, are matters of law. 5 La. Rep. 246.

The other facts sworn to, do not appear to us sufficient to authorize the issuing of the injunction. It does not appear that the judgment in execution of which the property of Gardiner, to wit, his judgment on the renewed note, was seized against Gardiner; if it was not, Gardiner’s property did not pass by the sheriff’s sale, and the fraudulent character of the contract by which he became possessed of the note cannot be inquired into, commencing with an execution. The party had his regular revocatory action to set aside those contracts and transactions of which he complains, and especially the last, by which it is alleged, the note was renewed and suit brought upon it in the name of Gardiner; nor does it appear by the affidavit, that Gardiner was a party to the suit brought against Morgan & Carlin and Babcock, which it is alleged resulted in the judgment against the latter to deliver up the note in question.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  