79 P. 394 | Idaho | 1904
Lead Opinion
This is an appeal from an order made by the district judge on the eighth day of August, 1904, refusing to dissolve a temporary restraining order theretofore issued, and making and entering his further order continuing in force such restraining order during the pendency of the action. The action was commenced on the eighteenth day of July, 1904, by the plaintiff, M. J. Shields, against the defendants, praying for an injunction against the defendants restraining them from cutting, removing or interfering with the plaintiff's crops growing upon a certain one hundred and sixty acre tract of land which
On the tenth day of October, 1900, the defendant, Frank M. Johnson, and his wife, Emma A. Johnson, by an instrument in writing, leased and let unto the plaintiff their one hundred and sixty acre tract of land situated in Latah county, for the period of four years, for an annual rental,of $250, payable on or before the first day of November each year. This lease also contained an option whereby the lessee might continue in possession of the premises for an additional period of two years upon paying a rental of $300 per annum, and it contained a further option whereby the lessee might purchase the farm, upon compliance with certain conditions, for the sum of $4,500. Plaintiff alleged that after entering into the possession of this tract of land he caused the same to be farmed and cultivated and part of it sown in alfalfa and the remainder in Bromus Innermis, and that while these grasses were growing upon the land the defendants entered and plowed up some eighty acres and sowed oats thereon, and that at the time of the commencement of this action the defendants were cutting and removing the grasses and oats to the damage of the plaintiff in the sum of $2,000. The plaintiff also filed an affidavit showing that the defendants were wholly insolvent and unable to respond to any judgment for damages, and that the defendant Johnson and his wife had filed a statutory homestead upon such tract of land. The defendants claim by their answer, and affidavits filed in support thereof, that they
For the foregoing reasons the order appealed from will be affirmed. Costs awarded to respondent.
Rehearing
ON REHEARING.
Counsel for appellants file a petition for rehearing in this case, and very earnestly insist that they are entitled to be again heard. “1. That the plaintiff had a plain, speedy and adequate remedy at law; and 2. That the plaintiff was guilty of such laches under the statement of facts in this case that would preclude him from obtaining a preliminary injunction.” Owing to the earnestness, and we believe candor, of appellants’ application for a rehearing, we have again gone over the entire record and briefs filed and submitted on the hearing of the case on its merits.
Taking up the first proposition that the plaintiff had a plain, speedy and adequate remedy at law, this question is answered by the opinion, wherein it is said “that the plaintiff has commenced his action for $2,000 damages against the defendant and filed an affidavit showing that defendants were wholly insolvent and unable to respond to any judgment for damages, and that defendants Johnson and his wife had filed a statutory homestead upon such tract of land.” It is also stated in the opinion that defendants filed affidavits tending to show that they were not wholly insolvent, but were able to respond in at least $500 damages. I apprehend this showing was what prompted the learned trial judge to order the writ. It was shown that defendants went upon the land leased by the Johnsons to plaintiff and plowed up about fifty acres of said land sown with Bromus Innermis, and sowed .thereon a crop of oats and also plowed up the forty acres of land sown to alfalfa. After this and about July 11, 1904, without plaintiff’s knowledge or consent, defendants entered upon said premises and cut down about forty acres of the said grass sown and known as Bromus Innermis. With an action pending for $2,000 damages against the defendants and an allegation of their insolvency, with a counter-showing that defendants were able to respond in $500 damages, showing that ninety acres of land sown in grass had been plowed up and the grass cut from forty acres more, evidently impressed the court with the idea that the defendants were unable to re
As to tbe next reason urged, “that tbe plaintiff was guilty of such laches under tbe statement of facts in tbe case that would preclude him from obtaining a preliminary injunction,” we cannot give our assent to this proposition. Tbe plaintiff had been placed in possession of tbe Johnson farm under a lease for a term of years that bad not expired. Tbe Johnsons bad attempted to forfeit the lease by another action in the district court, in tbe judgment of which it was adjudged that plaintiff in this action was indebted to defendants Johnson in this action in a certain sum of money, the court holding that the amount of money due plaintiff in that action against plaintiff in this action was for rent, and not an action to declare a forfeiture of the lease. This being true, the Johnsons and their employees were trespassers when they entered .the land for the purpose of plowing up the crops there grown upon the land, or for the purpose of cutting down the crops, but plaintiff was not confined to that remedy alone. We are still of the opinion that this was a proper case for an injunction under the facts in this case, and a rehearing is denied.
