3 Indian Terr. 656 | Ct. App. Ind. Terr. | 1901
There are five specifications of error in appellant’s assignment, but the grounds upon which error is assigned in all of them are embraced in the first two, to wit: “First, in overruling appellant’s demurrer to appellee’s complaint; second, in overruling appellant’s motion for a change of venue, and in refusing to make an order absolute granting said change of venue.” The demurrer is as follows: ‘ ‘Now comes the defendant in the above cause, and demurs
As to the first paragraph of the demurrer, we know of no law which permits a tenant to deny the title of his landlord, under whom he entered, because of the fact that there were no valuable improvements on the leased premises. It is true that under the Atoka agreement a claimant to a town lot, before he can become the owner of it, must have upon it valuable and lasting improvements; but before he can put the improvements upon it he must have obtained possession of it, and in this case one of the purposes for which the plaintiff brought his suit against his delinquent tenant, as alleged in his complaint, was that he might avail himself of the benefits of the Atoka agreement, by placing improvements upon the lot, and thus enable himself to become its absolute owner. Besides, the tenant in this case, after obtaining possession of the lot under the lease, put upon it valuable and lasting improvements, which, as between the parties to the lease, inured to the benefit of the landlord. It may have been that the very object of the landlord in leasing the lot was to have it improved by his tenant, so that he might be able, under the peculiar conditions that existed here, to hold it as against every title except that of the Indian nation. Whether this was the intention or not, in
The second paragraph of the demurrer, to the effect that the complaint is defective because it alleges as a cause
The third paragraph of the demurrer, “that the complaint is defective because it is set up and seeks to recover rents alleged to have accrued before the filing of the complaint,” is fully answered by section 3362, Mansf. Dig. (Ind. T. Ann. St. 1899,’ § 2296,) which is as follows: “In all cases of * * * unlawful detainer, when the defendant gives bond to retain possession of the lands and premises mentioned in the writ and declaration in the cause as provided by law, it shall be lawful for the plaintiff to introduce before the jury trying the main issue in such action evidence showing the damage he may have sustained in being kept out of possession of said lands and premises, and the
The only other question presented to us for consideration in this case is, did the court below,err in attaching a condition to its order granting a change of venue? The order is as follows: “At this time came on for hearing this cause on the motion heretofore filed by the defendant for a change of venue, and the court having heard the same, and the objection of the plaintiff herein, who files in open court three affidavits showing the insufficiency of the bond heretofore given by the defendant, and the court being fully advised in the premises, it is ordered by the court that the defendant herein, J. P. Ellis, within thirty days give a good and sufficient bond in the sum of one thousand dollars, and the clerk of the court being satisfied as to the sufficiency of the said bond, then, and upon that condition being fulfilled, that the motion of defendant be sustained, and this cause be be transferred to Wewoka, in the Northern district of the Indian Territory, for trial.” It is the law of this jurisdiction that a change of venue, when properly applied for, goes as a matter of right, and that in such cases the only question open to the court is the credibility of the supporting witnesses, and therefore the court had no power to prescribe conditions not named in the statute. Jackson v. State, 54 Ark. 243, 15 S W. 607. While the court had ample power to require the new bond to be filed by the defendant, the penalty for a failure to do so was not that the defendant should be compelled to go to trial before a