Bridges v. Sargent

• Decision Date: 01 May 1895
• Citation: 1 Kan.App. 442,40 P. 823
• Parties: JOAB BRIDGES et al. v. S. L. SARGENT
• Court: Kansas Court of Appeals

40 P. 823

1 Kan.App. 442

JOAB BRIDGES et al. v. S. L. SARGENT

Court of Appeals of Kansas, Southern Department, Central Division

May 1, 1895

Opinion Filed June 19, 1895.

MEMORANDUM.--Error from Lyon district court; CHARLES B GRAVES, judge. Action for an injunction by S. L. Sargent against Joab Bridges and wife. Plaintiff had judgment, and defendant brings error. Reversed.

The statement of the case, as made by DENNISON, J., is as follows:

This was an action brought by the defendant in error, as plaintiff, against the plaintiffs in error, as defendants, in the district court of Lyon county, Kansas, for a perpetual injunction to restrain the defendants below from further interfering with the possession of the plaintiff below and from entering upon the following-described real estate situated in the county of Lyon, state of Kansas, to wit, all the land on the west side of Wright's creek and on the north end of the east half of the northwest quarter of section 8, township 17, range 10. The plaintiff in said action (this defendant in error) sets up in his petition the following statement showing his title to said lands and his right of possession thereto, to wit, a contract between him and said Bridges, which is in words and figures as follows:

"Know all men by these presents, that we, Story Sargent and Joab Bridges, of Lyon county, Kansas, do, this 14th day of June 1872, bind ourselves in the penal sum of $ 500 to abide by the following agreement made this day between us, to wit: That the party of the second part agrees to sell to the party of the first part all the land on the west side of Wright's creek and on the north end of the east half of the northeast quarter of section 8, township 17, range 10, situate in said Lyon county, Kansas; and the said party of the second part expressly reserves all the timber on said land described above, and the party of the first part agrees to pay to the party of the second part an advance of one-half above the appraised value of said land as described herein, and also agrees not to interfere or file on said land when it shall come into market. Should the parties herein named faithfully carry out all the stipulations herein specified, then this bond shall be void; otherwise it shall remain and be in full force and effect. S. L. SARGENT.

JOAB BRIDGES (his X mark),

Per J. L. Stubbs."

The petition also sets out that on August 9, 1886, the said Joab Bridges brought his suit against this plaintiff in said court to recover possession of said land. At the trial of said suit of ejectment, the same being tried by the court, the jury being waived, the court found the facts and the law in favor of this defendant in error. The petition herein recites said findings, and the further fact that the court rendered judgment in favor of this defendant in error, S. L. Sargent, and against said Joab Bridges for costs, and it still remains unappealed from and in full force and effect, but by some oversight it seems that no journal entry had ever been spread upon the record of said court; and said petition asks that these plaintiffs in error, the defendants below, be enjoined and restrained from further interfering with the possession of said plaintiffs, and from entering upon said real property, and that at the next sitting of said court plaintiff may have a nunc pro tunc order of judgment in said cause, and that upon the final hearing thereof said injunction be made perpetual, and for all further and proper relief.

Judgment reversed and case remanded.

Jetmore & Jetmore, for plaintiffs in error.

J. Jay Buck, for defendant in error.

DENNISON J. All the Judges concurri...