purchased certain lands, in the petition described, containing in all 420 acres, of the value of $8,400; that the title to all of said real estate was taken in the name of the defendant, Albert Vandusen, in trust for said partnership, and was so held by him until the sixteenth day of October, 1876.

"That said J. B. Fletcher and Albert Vandusen, in the prosecution of their copartnership business, purchased and raised a large number of horses, cows, hogs, and other live stock, and purchased a large number of agricultural implements and other chattels, and raised a large quantity of corn, wheat and other crops, the legal title to all of which was held by Albert Vandusen, in trust for the partnership; that on the sixteenth day of October, 1876, said J. B. Fletcher and the defendant Albert Vandusen had on their farm and owned in copartnership the following personal property, to-wit: seven horses, two mules, two colts, twenty-seven cows, twenty-four calves, fourteen yearlings, one hundred pigs, thirty hogs, one heading machine, one reaper and mower combined, three wagons, five plows, three two-horse cultivators, three sets double harness, one hundred and forty-five acres of corn in the field, two hundred and fifty bushels of wheat, four hundred bushels of oats, and seventy-five tons of hay, of the value of about $5,450; that on or about the sixteenth day of October, 1876, the defendant Albert Vandusen conveyed the legal title to a part of the land in petition described to his son, Job Vandusen, defendant herein, which said conveyance was without consideration, and was taken by the said Job Vandusen with full knowledge that said real estate was the property of the copartnership.

"That on or about the sixteenth day of October, 1876, the said Albert Vandusen conveyed the legal title of the residue of the real estate in petition described to his wife, Louisa Vandusen, defendant herein, which conveyance was without consideration, and was taken by Louisa Vandusen with full knowledge that the real estate so conveyed was the property of said copartnership; that on or about the sixteenth day of October, 1876, the said Albert Vandusen transferred the legal title to the personal property described in the petition to the defendant Louisa Vandusen, which transfer was without consideration, and with full knowledge that the property belonged to said copartnership; that at the time of the death of J. B. Fletcher he and the defendant Albert Vandusen had and owned in partnership, on their said farm, certain personal property in the petiton described, of the value of (489)

about $6,600, the title to which the defendant Louisa Vandusen holds in trust for said copartnership; that during the years 1873 and 1874 the said J. B. Fletcher and Albert Vandusen also engaged in the business of brick-making, and of running and operating a billiard hall and saloon in Harrison county, under and pursuant to their agreement of partnership, and that during the years 1874 and 1875, under and in pursuance of said agreement, they prosecuted the business of buying and shipping live stock and grain, and of running and operating a saloon and billiard hall at Blair, in Washington county, Nebraska, and that during the continuance of said copartnership they at divers times carried on and prosecuted divers other business enterprises, in pursuance of their aforesaid agreement.

"That said J. B. Fletcher advanced large sums of money towards the capital of said copartnership, and that said copartnership prosecuted a large and lucrative business in farming, stock raising, and other business enterprises, aforesaid, and realized therefrom large profits; that at the time of the death of J. B. Fletcher there was on hand, belonging to said copartnership, besides the real and personal property already described, four cows in the possession of Albert Topping, defendant, of the value of $120, ten cows in the possession of Caleb Gregg, defendant, of the value of $300, one cow in the possession J. N. Wiley, defendant, of the value of $30, four cows in the possession of Warren White, defendant, of of the value of $120, and also book accounts, notes and other demands in the possession of the defendants Albert and Louisa Vandusen of the estimated value of about $500, making the whole amount of real and personal property and effects and assets of said copartnership, at the time of the death of said J. B. Fletcher, about $17,070; that the debts and liabilities of said. copartnership at the time aforesaid amounted to about $5,000, all of which ought to be paid out of the property and effects belonging to said copartnership; that the balance represents the present value and worth of said copartnership, amounting to not less than the sum of $12,000.

"That said Fletcher and said defendant Albert Vandusen were each entitled to share one-half the capital, profit and present value of said copartnership, after the discharge of its debts; that after the death of J. B. Fletcher the defendants Albert and Louisa Vandusen continued and still continue in possession of all the real estate, personal property and effects of said copartnership, and to manage and carry

on said business, to sell and dispose of the personal property, and to collect the debts and choses in action, and appropriate the proceeds to their own use; that with the exception of the real estate held by the defendant Job Vandusen, and the nineteen cows held by the defendants Topping, Gregg, Wiley and White, all the real estate and personal effects and assets of said copartnership are in the possession and under the sole control and management of the defendants Albert and Louisa Vandusen, who continue selling and disposing of the personal property, and reducing the same to money as fast as it can be done, without accounting to plaintiff for any part thereof, and without applying any portion to the payment of the debts of said copartnership; that the defendants Topping, Gregg, Wiley and Warren have severally in their possession the cows mentioned, which they hold subject to the order of the defendants Albert and Louisa Vandusen.

"That within a few days last past the defendants Albert and Louisa Vandusen have sold to the defendants King, Winch, Bolter and Logan, respectively, a large number of cattle and horses belonging to said copartnership, with the intention of appropriating the proceeds to their own use, the purchase price whereof has not been paid, but is held subject to the order of the said Vandusens; that within a few days last past the defendants Riley and Dillone have caused the sheriff of Harrison county to levy upon, by virtue of an execution in their favor against Albert Vandusen, a large quantity of corn as the individual property of said Vandusen; that the defendants Albert, Louisa and Job Vandusen are insolvent, and unable to give any security for the payment to said plaintiff, as administratrix, of the value of the interest of said Fletcher in said copartnership, and that unless they be restrained from selling the property and collecting the proceeds, and unless the defendants Topping, Gregg, Wiley and White be restrained from delivering the property in their possession to the order of Albert and Louisa Vandusen, and unless the defendants King, Winch, Bolter and Logan be restrained from paying for the property sold and delivered to them, and unless the defendants Riley and Dillone, and McArthur, as sheriff, be restrained from selling the property levied upon, the property and assets of said copartnership are in danger of being wholly lost to said copartnership and to said plaintiff, as administratrix of the estate of said Fletcher, deceased.'

The petition prays "that an account be taken of the part

nership business; that the defendants Albert and Louisa Vandusen be required to account for all their dealings with the partnership property; that the real estate and personal property be sold, and the debts of the copartnership paid; that the defendants Louisa and Job Vandusen be required to transfer to said copartnership all the property, effects and assets thereof held by them respectively in trust; that the defendant Albert Vandusen be required to pay plaintiff, as administratrix, such sums as shall, upon accounting, appear to be due the plaintiff on account of the interest of J. B. Fletcher in said copartnership; that a receiver of said property, with the usual powers and duties, be appointed; that the defendants Albert, Louisa and Job Vandusen be restrained from selling, disposing of, or in any manner interfering with the property of said copartnership; that the defendants Topping, Gregg, Wiley and White be respectively restrained from delivering any property of said copartnership in their possession to the order of Albert and Louisa Vandusen; that the defendants King, Winch, Bolter and Logan, respectively, be restrained from paying to said Albert and Louisa Vandusen, or their order, any part of the purchase price of the property of said partnership in their possesion; that the defendants Riley and Dillone and McArthur be restrained from taking and disposing of, or otherwise interfering with, the property of said copartnership levied on under execution against Albert Vandusen, and that a writ of injunction issue accordingly against all the defendants."

This petition was verified as follows: "State of Iowa, Harrison County:

"I, Clara Fletcher, being first duly sworn, say that I am administratrix of the estate of J. B. Fletcher, deceased, and plaintiff in this action; that I heard the foregoing petition read, and know the contents thereof, and the statements therein are true, as I verily believe.

"CLARA FLETCHER.

"Subscribed and sworn to before me this eighth day of February, 1879.

"J. W. BARNHART, Notary Public." On the twelfth day of February, 1879, at Onawa, the Hon. C. H. Lewis, judge of the fourth judicial district, without before allowing the defendants an opportunity to show cause why an injunction should not be granted, they having no notice of the commencement of this action, or of the time and place of the application for an injunction, made and indorsed upon

the petition an order that an injunction issue as prayed, upon the filing of an approved bond in the sum of $1,000, and that the hearing for the appointment of a receiver be fixed at Sioux City, March 20th, on fifteen days' notice to the defendants. On the seventeenth day of February, 1879, the petition and order were filed in the office of the clerk of the Harrison district court, and an injunction was thereupon issued, as prayed, which was duly served on the eighteenth, nineteenth and twenty-first days of February.

On the seventeenth day of June, 1879, the defendants Albert and Louisa Vandusen filed with Hon. C. H. Lewis, judge of Harrison district court, in vacation a motion to vacate the injunction as to all of the defendants, on the following grounds: First, because it appears on the face of the petition that the injunction was, as to said parties, improperly granted; second, because said injunction was granted without the appointment of a receiver to have charge of the property, and collect the moneys mentioned in said petition, and without any order for such appointment; third, because said petition shows the defendant Albert Vandusen to be the sole surviving member of the partnership therein alleged, and no receiver has been appointed to settle its affairs, on the application of said plaintiff. The judge overruled the motion to vacate. defendants Albert and Louisa Vandusen appeal.

A. W. Clyde and J. C. Naylor, for appellants.
Smith & Kelley, for appellee.

The

DAY, J. 1. It is urged at great length, and with much earnestness, that the petition is not supported by affidavit, within the meaning of section 3388 of the Code. It is insisted that a verification, which in ordinary cases would be sufficient for a pleading, is not sufficient where the petition asks an injunction. We are of opinion that the motion to vacate the injunction does not fairly raise or present the question of the sufficiency of the verification.

2. It is claimed that the motion to dissolve the injunction. should have been sustained, because at the time the injunction was issued no order for the appointment of a receiver of the property had been made. The record shows that the hearing of the application for the appointment of a receiver was postponed until the twentieth of March, to be heard on notice to the defendants. The appointment of a receiver could not properly be made without notice. The motion to dissolve was not filed until June 17th. It is not shown that a receiver had not then been appointed. For aught that