Defendants moved the court below to dissolve an injunction. The motion was submitted upon the *237original complaint and amendment thereto, the answer, and certain affidavits filed and used by plaintiff. The motion was denied, and this appeal is by defendants from the order denying the motion.
Appellants claim : 1. If the averments in the complaint and amendment thereto are true, plaintiff has a complete remedy at law by prosecuting some of defendants for a criminal offense.
2. That the injunction ought to have been dissolved, because some of the allegations of the complaint are “upon information and belief.”
3. That the equities of the complaint are denied by the answer.
It is also' suggested that it appears from the allegations of the answer the process of the court is being abused by the plaintiff for the purpose of preventing the redemption by the corporation, of property sold under judgment against the corporation, at a sale at which plaintiff became the real purchaser, in the name of another, plaintiff thus intending to defraud the corporation of such property.
1. A criminal prosecution, in which the people would be plaintiff, would not be subject to the control of present plaintiff, nor ivould its success give plaintiff the relief Avhich he seeks, or its equivalent.
2. Some of the averments of the complaint, “ upon information and belief,” are not denied by the ansAver; others Avere sustained by positive affidavits at the hearing. Assuming the allegations Avhich are not denied by the ansAver, those which are themselves positive, and those sustained by positive averments in affidavits to be true, we cannot say the court below abused its. discretion in refusing to dissolve the injunction.
3. All the equities of the complaint are not denied by the ansAver. "With reference to such of them as are denied by the . ansAver, it seems to be the established practice in this State to permit the use by plaintiff of affidavits against the SAVorn answer, which, on the application to dissolve, is treated as an affidavit. (Falkinburg v. Lucy, 35 Cal. 52; Hicks v. Compton, 18 Cal. 206.)
The averment in the answer with reference to alleged abuse of process and intepded fraudulent acquisition of the property *238of the corporation by plaintiff, “ defendants are informed and believe that the money paid to purchase the said property at said sheriff’s sale was furnished by plaintiff, through his wife, and said plaintiff caused the said purchase to be made,” is met by the affidavit of plaintiff. In this he positively swears: “ It is not true that I caused J. W. French (the person named in the answer as purchaser) to purchase the property of the defendant corporation at sheriff’s sale. It is not true that the money paid to purchase the same was furnished hy me through my wife. I have no interest whatever in said purchase.” If it should be admitted that the resort to the injunction was made by plaintiff with intent to secure title to the property of the corporation—the complaint and affidavits showing plaintiff is entitled to the injunction—is material, and that plaintiff, pending the injunction suit could acquire title which could be asserted adversely to the corporation, we cannot say that the court below would have abused its discretion in refusing to dissolve upon the averment of the answer, “ on information and belief,” and the positive oath of plaintiff in his affidavit.
The facts alleged in the pleadings and affidavits are complicated, and although some of the facts stated by plaintiff are denied by defendants, yet we cannot say the refusal to dissolve the injunction under the circumstances appearing in the case was an abuse of discretion. (Coolot v. C. P. R. R. Co. 52 Cal. 67; Parrott v. Floyd 54 Cal. 534; White v. Nunan, 60 Cal. 406; De Godey v. Godey, 39 Cal. 167; McCreery v. Brown, 42 Cal. 457.)
It is to be distinctly understood that neither the order of the court below denying the motion, nor the affirmance of that order by this court, has any controlling influence upon the decree which may be entered in the cause. If the action has not • already been tried, the judgment of the court below must, of course, be based upon the evidence which shall be taken at the trial. Order affirmed.
A petition was filed asking that the cause be heard in Bank, and on the 6th of April, 1883, the following opinion was delivered thereon: —