128 P. 240 | Okla. | 1912
This is an appeal from the district court of Jefferson county. The plaintiff, W. C. Langford, brought the suit against W. F. Bourland, Webb, Allen Melton, a copartnership composed of Sidney Webb, J. L. Allen, and A. W. Melton, W. F. Haygood, and R. N. Coffee to quiet title to certain land in Jefferson county. The petition alleged that the plaintiff was the owner and in possession of the land. The defendants answered denying his ownership and right to possession, and alleged that they had been in peaceable possession of the land for many years, and that "the said plaintiff was threatening to take possession of said premises by force, and to force the *279 same, and to deny these defendants the right to enjoy the possession of the same, thereby subjecting these defendants to expensive litigation in regaining the possession thereof, and hindering and delaying them in their proper enjoyment of their said possession, for which they have no adequate remedy at law; that the plaintiff, W. C. Langford, is insolvent" — and prayed for an injunction to prevent the plaintiff from taking possession, and restraining him from fencing the land, or exercising any other right of ownership or control over the land, "during the pendency of this suit." In the absence of the district judge, the county judge issued a temporary restraining order restraining the plaintiff, during the pendency of the suit, from taking possession of, or attempting to take possession of, the land. The plaintiff afterward filed a motion to dissolve the injunction, and after a hearing the district judge dissolved the temporary injunction. This appeal is from the order of the district judge dissolving the temporary injunction.
The answer of the defendants upon which the injunction was issued alleged that the defendants were the owners of the land. Their answer only amounted to a denial of the plaintiff's right, and alleged that they were in peaceable possession.
The dissolution of a temporary injunction, as well as the granting thereof, is, to a certain extent, within the discretion of the court; and except in the case of palpable abuse the appellate court will not reverse an order dissolving a temporary injunction. Cunningham v. Ponca City,
In this case the evidence showed that the plaintiff endeavored on one occasion to take possession of the land; but there is no evidence that he intended to make further attempt in that direction, and nothing to show that he intended to do any injuiry or waste on the land. On the other hand, the evidence shows that he had begun to build a fence thereon. Neither is there any proof that he attempted to use force or violence in order to effect an *280 entrance. He merely endeavored to induce a tenant on the place to let him into possession. Under such circumstances it was not an abuse of discretion for the court to dissolve the temporary injunction.
The judgment of the lower court should be affirmed.
By the Court: It is so ordered.
