delivered the opinion of the court.
The plaintiff complains of the dissolution of an injunction he had obtained, to stay the execution of a judgment pronounced and signed on the last day of a term.
The counsel for the appellee, has contended that the injunction had been improperly obtained, as the applicant had not made oath, that the facts stated in the petition, rendered, in his belief, the injunction necessary. Further, that, as the judgment was rendered on the last day of the term, a new trial ought to have been moved for, before the court adjourned. Code of Practice 904, 5 Martin, JV. S. 244.
It does not appear to us, that either of these grounds, au-thorised the dissolution of the injunction, The Code does indeed require an oath of the truth of the facts, which in the applicant’s belief, render an injunction ¶¶ -» ,■* • , ■ ¶. i , necessary. when he has done so, the magistrate applied to, is judge of this necessity, and it does not appear to us, that the Code requires him to he informed, that on the applicant’s belief this necessity exists.
The case cited from the new series, was, we believe, that of a judgment rendered before the Code of Practice went into operation, as the court refers to a provision in 2 Martin’s Digest, which the Code has repealed. The deci
Although the injuction appears to have been improperly dissolved, we think that justice requires that the case should a be remanded, in order that it may be ascertained, whether a new trial was granted at the term following that on which the judgment was rendered. For if a new trial was had, the judgment on which the execution stayed, issued, has lost its effect, and it would be idle to dissolve the injunction staying its execution, because the party would certainly, after the dissolution, be entitled to another injunction.
The case was not heard below on the merits, but on exceptions taken to irregularities, apparent on the face of the paper; whereby the appellant had not the opportunity of going into the merits of the case: showing, if such were the fact, that a new trial was obtained, and by placing these facts on the record, entitling himself to relief at our hands.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, reversed and set aside, and the case remanded, with directions to the judge, to proceed thereon, according to law, the appellee paying costs in this court.