Munyos v. Filmore

4 Indian Terr. 619 | Ct. App. Ind. Terr. | 1903

Gill, C. J.

Appellees make the point that' the appeal in this case is premature, inasmuch as the judgment of thefcourt below was not upon the merits of the case, which has not yet been heard; that the parties to the action have not been dismissed nor their rights adjudicated.

Of course, if this be true, this appeal cannot stand, and it is useless to go into an extended discussion of the case, as, until the lower court has finally adjudicated the matter it cannot be heard in this court. Crull vs Keener, 17 Ill. 246; A. T. & S. F. R. Co. vs Brown, 26 Kan. 443; Adams vs McPherson, 2 Idaho, 855, 27 Pac. 577; Howard vs Louisville & N. R. Co. (Ky.) 32 S. W. 746; Century Dig. vol. 2, pp. 991, 992, “Appeal and Error.”

What, if anything, is decided in this cause in the court below? An examination of the court’s judgment shows that it relates merely to the approving of the master’s report, which reads as follows: “The court having been first duly advised, and after a full and careful understanding of the findings heretofore rendered by the special master, to which this cause was referred by agreement of the parties hereto, the issue therein having been found in favor of the defendant, it is therefore considered, ordered, adjudged, and decreed by the court that the master’s report be, and the same is, in all things confirmed.” Now, under this judgment, what has been determined by the court? Merely that the master’s report is in all things confirmed The court makes no judgment. The court awards nothing to any one, either plaintiff or defendant. The action primarily was for injunction and for damages. The master has reported his findings of fact and conclusions of law in the case. The court says that these findings of fact and conclusions of law are correct and are confirmed, but the court has not acted upon these findings of fact and conclusions of law to pronounce judgment thereon, and there is no judgment standing in this action except an interlocutory finding of the judge, from which, under light of all authorities, appeal cannot be had until final judgment thereon. Palmer vs McChesney, 26 Ark. 452; Mayberry vs Thompson, 46 U. S. 121, 12 L. Ed. 78; Howard vs Louisville & N. R. Co. (Ky.) 32 S. W. 746; Hutchinson vs Ayres, 117 Ill. 558 7 N. E. 476.

■. We are satisfied, and it is. our ■opinion, that this appeal was premature, and that the same ought to be dismissed. Before, however; dismissing the appeal, we would look at one portion of the special master’s report submitted to the court below, which reads as-follows: “My conclusions from .all the testimony is that an ejectment or unlawful detainer suit would be the proper action for the parties to this proceeding to determine their respective rights, in which case the material questions of fact that have arisen in this suit might be properly tried before 'a jury. I do not consider it the province of a court of equity to try disputed titles to land, but where there is a suit at law instituted for the possession of land, and the defendant is doing acts of an irreparable nature, I think that it is the province of the court to grant an injunction pendente lite, if shown that the defendant was insolvent. In this suit the testimony show's that Stephens and Miller are solvent, and that Filmore and Ryan are insolvent. If the plaintiffs in this suit had a clear right to the possession of the premises in controversy, or if it were shown that they were occupying the premises prior to the time the defendants went thereon, and that the defendants, were committing trespasses, of an irreparable nature, and to the great injury of the plaintiffs, I am of the opinion that the plaintiffs would be entitled to an.injunction, providing that defendants were insolvent; but, that state of facts not appearing in this case, I am. of the opinion that there is no ground. for an injunction proven.”

It is the opinion of this court that where, as,in this case, plaintiffs file their complaint asking that certain parties be enjoined from trespassing upon the premises of another, and merely containing a general allegation of damage, that before injunction is authorized the trespass complained of must be naked trespass —that is to say, a trespass made by some one without color or right to the premises trespassed upon; and that where parties defendant come into the case, and show, by answer or proper motions, on testimony, that they are claiming as owners, or claiming under some color of right, and are not naked trespassers, the court will not in such case proceed to attempt to define the rights of the parties in the injunction action, but will require the plaintiffs to refer the matter to the proper tribunal. In other words, that the equity court will not permit parties in an application for injunction to settle a disputed title. Beach on Injunctions, vol. 1, § 20; Id. vol. 2, § 998; High on Injunctions (2d Ed.) §§ 698, 701, 728; American Dig, tit. “Injunctions,” vol. 27, §§ 82, 83, 84 and 85, and cases cited.

And, without undertaking to pass upon the testimony and its effect in this case, if such testimony shall show the condition of affairs as reported by the special master to the court it would then become the duty of the court to refuse the application for injunction, and require the parties to refer their claims to the proper tribunal for decision of the rights claimed by each.

For the reasons foregoing, the appeal in this case is ordered dismissed.

Clayton and Raymond, J.J., concur.