134 P. 28 | Okla. | 1913
Defendants in error brought this action in the court below to obtain an injunction, enjoining plaintiff in error from in any way interfering with their possession of a certain tract of land, consisting of about 120 acres, and from interfering with their harvesting of a crop of corn on said tract of land. A motion to dissolve a temporary injunction granted by the trial court was overruled; but the evidence, taken on the hearing of that motion, is not preserved in the record. Thereafter a demurrer to the petition of defendants in error, hereinafter referred to as plaintiffs, was filed by plaintiff in error, defendant below, which motion was overruled. Defendant thereupon filed his answer, which was a general denial. A trial resulted in a judgment in favor of plaintiffs, making permanent the temporary injunction therefore granted.
The assignment of error which complains of the overruling of the demurrer to the petition of plaintiffs is the only assignment we need consider. It has been urged that we cannot consider this action of the court below because more than a year elapsed from the overruling of the demurrer before the institution of the appeal in this court; but the appeal in this court was begun within one year after the rendition of the judgment of the trial court, which was the time prescribed by the statute then in force within which proceedings in error to review final judgments might be brought, and the overruling of the demurrer may be considered. Love et al. v. Cavett,
Plaintiffs allege in their petition in the lower court substantially that they rented from defendant, for the year 1909, a certain quarter section of land in Kay county, except the orchard, vineyard, pasture, and mow lands of said quarter section, which were retained by defendant; that they were to plant said lands so rented in corn, and were to give to defendant one-third of the corn grown thereon, to be delivered to him on the place or in Ponca City, as defendant should elect. The lands rented consisted of about 120 acres in cultivation, upon which was cultivated and grown by plaintiffs a crop of corn, which was matured and ready to be gathered when defendant employed hands, wagons, and teams, entered the field, and began to gather same. He locked the gates to prevent the entrance of plaintiffs into the field, and threatened to shoot one of plaintiffs if he entered the place to gather the corn. Entrance into the field could be made by plaintiffs only by breaking the locks and chains which had been placed upon the gates by defendant. They allege that defendant has no property out of which they could collect any judgment for damages. The petition fails to state a cause of action for injunction, in that it does not show that plaintiffs have no plain, speedy, and adequate remedy at law.
Since by their contract plaintiffs were to gather the crop of corn raised by them, and to divide the same and deliver to defendant his one-third, plaintiffs had a right to the possession of said corn until the same had been gathered and divided, and they could maintain replevin therefor.Cunningham v. Baker,
For the reason that the court erred in overruling the demurrer to plaintiffs' petition, the judgment of the trial court is reversed, and the cause remanded.
All the Justices concur, except WILLIAMS, J., not participating.