# Wilkinson v. Lyon

> Court of Appeals of Texas · October 19, 1918 · 207 S.W. 638

URL: https://www.frixlaw.com/law-library/cases/9832274

## Case

- **Full name:** WILKINSON Et Al. v. LYON Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** October 19, 1918
- **Citations:** 207 S.W. 638; 1918 Tex. App. LEXIS 1253
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Dunklin
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9832274

## Opinion text

On Behearing.
Appellees earnestly insist that we erred in concluding that the defective verification of the petition was not jurisdictional, and that the right of appellees to complain of it in this court for the first time was waived by their failure to urge the objection in the trial court. They insist that we are in direct conflict with several decisionsr notably White v. Ferris, 186 S. W. 367 ; Graves v. O’Neil, 189 S. W. 781 ; Moss v. Whitson, 130 S. W. 1034 .
We do not believe our conclusions on original hearing to be necessarily in conflict with those decisions or the others cited. In each of the two decisions first'noted the defendant filed answer to plaintiffs’, petition for injunction, which answer contained a special exception to the verification of the petition as being insufficient, and it seems that the trial court in- each of those cases, in acting upon the application for an injunction, considered both the petition and answer. Under such circumstances, it cannot be said that the objection to the verification was made for the first time in the Court of Civil Appeals. In the case of Moss v. Whitson, supra, we think it reasonably appears from the opinion that the hearing of the application for injunction was had at the time the petition was filed, and before any answer was filed thereto by the defendant, and that the hearing was ex parte. Under such circumstances, it cannot be said that the defendant waived any objection to the verification, since he .was -not given an) opportunity to urge the same. Furthermore, in that case the trial judge refused the writ for lack of merit in the petition, and his action in so doing was affirmed by the Court of Civil Appeals. That conclusion rendered unnecessary the further conclusion that the judgment should be affirmed for lack of sufficient verification, which, however, was in accord with what we have already *642 said upon the original hearing, if it be true that the hearing was ex parte and the defendant given no opportunity to object to the verification.
In 3 Corpus Juris, pp. 776, 777, after stating the rule that an objection that a pleading is not signed or subscribed by the party or an attorney as required by statute or rule of practice cannot be made for the first time on appeal, the following is said:
“The same rule applies to the objection that a pleading was not verified, or that the verification was defective or insufficient. Therefore objection cannot be raised for the first time on appeal for want of or defect in the verification of a bill, petition, or complaint, unless, .under a statute, proper verification is essential to jurisdiction.”
Both by our statutes and Constitution the judges of the district courts are vested with general. power to issue writs of injunction. Vernon’s Sayles’ Tex. Civ. St. art. 1713; Const, art. 5, § 8.
The statutory requirement that a petition for a writ of injunction shall be verified before the writ is issued is in no sense a limitation of the jurisdiction conferred by the Constitution and statutes upon the district court and the judges thereof, but merely relates to procedure, and was enacted for the protection of the defendant against whom the suit is instituted, and we perceive no valid reason why he canhot waive such a benefit.
The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9832274. Public record. Not legal advice.