.HALL, Chief Justice.
The appellee, Jaggers, sued the appellant bank in the county court of Cochran county, to recover $200 with interest thereon, alleging that it was the agreed value of two horses and other personal property which he had sold to J. J. May at the special instance and request of the bank and on its express promise to pay said sum.
The petition alleges that Jaggers is a resident citizen of Cochran county and that the bank is a resident of Hockley county. •
The bank filed its plea of privilege to be sued in Hockley county. Jaggers in due time filed a controverting affidavit. No question is raised as to the sufficiency of the plea of privilege or of the controverting affidavit, except as to the verification of the latter. The controverting affidavit is verified by one of ap-pellee’s counsel in the following language: “W. W. Campbell, being duly sworn by the undersigned authority, deposes and says the foregoing allegations of fact are true and correct. He is an attorney of record for the plaintiff in said cause, has investigated the facts alleged and is conversant therewith and' verifies such facts as true and correct according to his information and belief, which he verily believes to be true.”_
The bank moved to strike the controverting affidavit because: “The verification of W1 W. Campbell is upon information and belief, which affiant states he believes to be true and not verified as to existing facts as required by law.” The court overruled the motion.
The case was tried upon its merits, and the action of the court in overruling the motion to strike the controverting plea is the first error urged.
The test of the sufficiency of an affidavit to a pleading filed under R. S. arts. 2007 and 2010, is that the affidavit of the facts sworn to must be so direct and unequivocal as that an indictment for perjury would lie if the oath is falsely made. Many authorities in this state have held that an affidavit in which the affiant- states that the facts are true to the best of his information and belief is wholly insufficient, and as said in E. L. Witt & Sons v. Stith (Tex. Civ. App.) 265 S. W. 1076, 1078: “The court acquires no jurisdiction to hear and determine such plea of privilege [until a legal controverting affidavit is filed], but should obey the mandatory provisions of the statute, and transfer the case; or permit the party seeking to maintain venue to file a proper controverting affidavit.”
That the verification of the controverting affidavit in this case is wholly insufficient to give the court jurisdiction to hear evidence upon any issue is too well settled bo require further discussion. Graham v. McCarty, 69 Tex. 323, 7 S. W. 342; Bledsoe v. Mack (Tex.
[925] Civ. App.) 57 S.W.(2d) 869, and authorities therein cited, and this case announces the rule that a defect in the verification of an application for a temporary injunction may be raised for the first time in the Court of Civil Appeals. Rogers et ux. v. Alexander et al. (Tex. Civ. App.) 289 S. W. 1070; Johnson v. Ferguson (Tex. Civ. App.) 55 S.W.(2d) 153; National Rys. of Mexico v. Escontrias (Tex. Civ. App.) 19 S.W.(2d) 75; St. Paul Fire & Marine Ins. Co. v. Earnest (Tex. Civ. App.) 293 S. W. 677; Smith v. Abernathy (Tex. Civ. App.) 6 S.W.(2d) 147; Finkelstein v. M. H. Reed & Co. (Tex. Civ. App.) 15 S.W.(2d) 110, 111; American Mortgage Corp. v. Smith (Tex. Civ. App.) 35 S.W.(2d) 1092.
Because the court erred in overruling the motion to strike the controverting affidavit, the judgment is reversed, and the cause remanded in order that plaintiff, if he so desires, may amend his affidavit. Should he refuse to amend, it is the duty of the court to forthwith sustain the plea of privilege and transfer the case.
It is ordered that the clerk of this court detach the original exhibits from the statement of facts and return them with the mandate to the clerk of the trial court.
Reversed and remanded.
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