Long v. Kasebeer

28 Kan. 226 | Kan. | 1882

Lead Opinion

The opinion of the court was delivered by

Horton, C. J.:

1. Injunction, petition, as evidence. It is objected that the verification to the petition is wholly insufficient, and ought not to have been received as evidence. Section 114 of the code, and many cases, are cited as sustaining the objection. Neither the provision of the code referred to, nor the decisions cited, support the objection. The question before us is not one of statutory verification. The pleading was not of the character to necessarily require verification, and the affidavit annexed to the petition made the petition sufficient , 1 to be received and considered on the hearing for the interlocutory order. In Atchison v. Bartholow, 4 Kas. 124, in the jurat annexed to the’petition the affiant merely testified on information and belief. In this case the affiant deposed that he was the agent of the plaintiff; that the plaintiff was a non-resident of the state;. that he had heard the petition read, and that the several matters therein stated were true.

It is further urged that the petition makes a case of simple naked trespass, and does not authorize a temporary or final order of injunction, or any other equitable relief. The petition will not bear this construction. It alleges that the plaintiff is now, and has been for years, the owner and in the actual possession of the premises; that the same are partially inclosed, and about fifty acres thereof broken and in-cultivation; and then sets forth that, proceeding under some pretended claim of right, the defendant is seeking to oust plaintiff from the possession of the premises, and appropriate the same to his own use and occupation. It further alleges that the defendant is irresponsible, and not able to respond in damages for the injuries and damages apprehended. So long as the plaintiff is in the actual possession of the premises, the defendant has no right by force to attempt to enter thereon to oust him of such possession, or to deprive him of the use thereof, or to erect any buildings thereon. It is said that the fact that the injury is irreparable may arise either from the nature of the injury, or the want of responsibility of the person committing it, and that either will furnish sufficient grounds for interference by injunction. To exclude equitable relief, it must not only appear that there is some remedy at law, but also that it is adequate. If the defendant is irresponsible, the actions at law proposed by his counsel can scarcely be said to be adequate.

Again, the defendant has no right to erect and maintain a building, on land owned and in the actual possession of plaintiff, and the erection of such building is a trespass of. a character to authorize equitable relief. (Grant v. Crow, 47 Iowa, 632; Sword v. Allen, 25 Kas. 67; Webster v. Cooke, 23 Kas. 637; Code, § 238.)

2. Temporary, injunction when granted. We do not understand from the petition'that the defendant has actually turned the plaintiff out of possession and taken full and absolute possession, but only that he has entered upon the land under some pre- ,. tended claim of title, and that he is seeking to oust plaintiff of all possession, and to assume the management and control of the land at the time of the application for the temporary order of injunction. The injunction, pendente lite, does not determine the parties’ rights, and as the district courts have considerable discretion in allowing or disallowing, and in sustaining or vacating temporary injunctions, we perceive no good reason in this case for reversing or vacating the order granted!

The order and judgment of the district court will be affirmed.

All the Justices concurring.

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Rehearing

MOTION FOR REHEARING.

Plaintiff in error filed a motion for a rehearing of the above case, which motion the court heard at its session in July, 1882, and at its session in September, 1882, filed the opinion, infra.

The opinion of the court was delivered by

Horton, C. J.:

It is urged in the argument of counsel presenting this motion, that the court below acted upon illegal evidence, admitted against their objections and exceptions; and that this point was wholly ignored in the opinion rendered. It was decided as early as the case of City of Atchison v. Bartholow, 4 Kas. 124, that a petition properly verified may be read in evidence on an application for an injunction; and further, that the only difference between an affidavit and a deposition is, that while each is a declaration under oath, the former is made without notice and the latter upon notice. Upon the hearing of the application for the injunction, counsel representing this motion “objected to the petition and verification being received as evidence, because the verification was insufficient, and the allegations in the petition consisted of mere conclusions and statements of matters of record, which statements were secondary, and not the best evidence.” (Original brief of plaintiff in error, p. 2.) In our former opinion we held the verification sufficient, and attempted to distinguish the jurat annexed to the petition from the one referred to in Atchison v. Bartholow, supra. We did not think the objection to the petition sufficiently specific, and therefore the omission complained of. An objection, to be available, should run to the specific testimony alone which is objectionable; and where it runs to all the testimony, some of which .is competent and some incompetent, an overruling of the objection will seldom if ever be adjudged error. (Simpson v. Kimberlin, 12 Kas. 587; Willis v. Sproule, 13 Kas. 257-264; Rheinhart v. The State, 14 Kas. 318-323; Cross v. National Bank, 17 Kas. 336-338; Railway Co. v. Cutter, 19 Kas. 83-8; Humphrey v. Collins, 23 Kas. 549; The State v. Cole, 22 Kas. 474.) Where a general objection is made to a deposition or affidavit upon the ground that it consists of mere conclusions and statements of matters of record, the objection is not sufficiently definite to be considered, unless the deposition be wholly incompetent. ' If portions of the deposition or affidavit are sufficient as testimony, such a general objection must be overruled. Where incompetent or illegal evidence is contained in a deposition or affidavit, an objection to such incompetent or illegal evidence must be specifically made. A general objection to the whole deposition or affidavit, if any competent testimony be' contained therein, will not do. Now in the petition read as an affidavit upon the hearing of the injunction, all the matters stated therein are not mere conclusions and statements of matters of record. For instance, it is set forth that the plaintiff “has been and is in the actual possession of the real estate therein described; that the same is partially inclosed; and that fifty acres thereof are broken and in cultivation.” These statements are not mere conclusions, nor are they statements of matters of record. Title to real estate, without reference to whether it be by deed, decree, devise, descent, equitable estoppel, prescription, limitation or otherwise, or whether it be of legal or equitable title, may be proved prima facie by showing actual possession. (Gilmore v. Norton, 10 Kas. 491.) In order to obtain an injunction, it was incumbent upon the plaintiff below to show prima facie title in himself to the premises described in his petition, and also that he was in the actual possession thereof. The affidavit purported to set forth testimony tending to establish these facts, and although not set forth in detail or at great length, yet these statements as set forth would not have been improper in the oral testimony of a witness as against any objection made to the whole testimony for incompetency. Again, it is stated in the petition, read as an affidavit, that the defendant (plaintiff in error) “has no interest or right whatever in or to the premises, but that he claims some interest therein adverse to plaintiff; and that he unlawfully and-against the wish of plaintiff below, entered upon the premises and commenced the erection of buildings, and declares it to be his purpose, unless restrained, to take up his permanent residence on the premises and assume the management and control thereof.” Yet none of these statements are either such mere conclusions of law or secondary statements of matters of record as to be inadmissible as testimony. In our former opinion we assumed, in the absence of anything to the contrary, that the statements of facts set forth and contained in the petition are true, and thereon decided that the order and judgment of the districtcourt are not erroneous. We think the district court acted upon competent evidence; that legal evidence is contained in the petition; and that in granting the injunction, the district court did not grant it without evidence, or upon evidence wholly incompetent or irrelevant. The statements of fact contained in the petition referred to herein, in our opinion would to a great extent be proper in the oral testimony of a witness.

Counsel further complain that they are erroneously represented in the opinion, as having made a totally improper citation of the case of Atchison v. Bartholow, supra. An examination of the original brief shows that the first point made was, “that the verification of the petition was wholly insufficient, and should not have been received as evidence over plaintiff in error’s objection;” and §114 of the code, together with a large number of cases, is cited sustaining the objection. A further examination of the brief, however, makes it manifest that the case of Atchison v. Bartholow, supra, was cited upon another proposition in the brief, and not upon the question of the verification to the petition. In this respect the opinion will be corrected, in accordance with the request of counsel.

The motion for a rehearing will be overruled.

All the Justices concurring.