26 Kan. 292 | Kan. | 1881
This is an application for an injunction, filed in the district court of Shawnee county. But one question is presented in the record, and that is, whether upon the allegations in the petition the plaintiff is entitled to an injunction? The district court held that he is not, and from such ruling the plaintiff alleges error. The petition, in brief, states these facts: The plaintiff, as was well known to the defendant, is an eminent Congregational clergyman of pronounced opinions on all moral questions of the day. He was an early settler in Topeka, for some years pastor of the Congregational church in that place, and his reputation there was fixed as a man who believed in the pernicious effects of theaters. For some time past he has resided in the state of New York, but.still owning real estate in Topeka, which from time to time he leased to various parties through special contracts executed by himself. In looking after his business and collecting rents, he employed as agents, Ross & Still-son, who had, however, no authority to lease or to bind the plaintiff by any new contracts. These agents attempted to lease lots of plaintiff’s, on which was erected a building known as the “ Tabernacle,” to the defendant for the purpose of general amusements, including theatrical performances. Plaintiff’s repugnance to such amusements was well known to his agents, and should have been known by defendant. As soon as plaintiff heard of this transaction, which he did in a very few days by seeing a notice of it in the paper, he repudiated the same by telegraph to the parties, demanding the abrogation of the pretended lease and the cessation of the use of his property for the purposes mentioned, but the defendant declined to abandon the property or discontinue the use. Hence, this action was brought.
Do these facts show a case for the interference of a court of equity by the remedy of an injunction? It is clear that the plaintiff, having never leased the lot or authorized its lease, is entitled to his legal action to recover possession.
So far as the reputation of the plaintiff is concerned in the community where he once lived, where he is now well known and honored, that reputation is sustained by his prompt disavowal of the unauthorized lease and an action at law for the recovery of possession, as fully as it would be by a suit in equity. He stands before the community proclaiming his continued adherance to his old-time convictions, and cannot for a moment be thought to have dallied with what he be
Counsel, conceding that there is no precedent to sustain this action, intimate that this court should establish one; but it is the duty of courts to stand by the ancient landmarks, to walk super antiguas vias. Additional remedies must be established by other bodies and in otherways.
The conclusion therefore to which we are necessarily led is, that the facts stated by plaintiff in his petition are not such as will entitle him to the interference of a court of equity, or take away the constitutional guaranty of trial by jury.
The judgment of the district court will therefore be affirmed.