Martinson v. Marzolf
| Decision Date | 31 May 1905 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McLean county; Winchester, J.
Action by Martin Martinson against George Marzolf and Millie Marzolf. Judgment for defendants, and plaintiff appeals.
Reversed.
Order reversed, without costs and cause remanded.
Hanchett & Wartner, for appellant.
Equity will protect entryman's possession by injunction. Reaves v. Oliver, 41 P. 353. Injunction can only be dissolved at any time before trial, not after judgment is entered. Rev. Codes 1899, section 5350. The decision of the Department of the Interior, allowing a homestead entry upon public lands, is binding upon the courts. Reservation State Bank v. Holst, 95 N.W. 931.
State and territorial courts have no jurisdiction to litigate the title to a homestead entry; such jurisdiction belongs to the land department of the federal government. But a homesteader's right to possession during the life of such entry will be protected by the courts. Sproat v Durland, 35 P. 682.
A homestead entry being a purely equitable interest, and not a legal title, equity will protect the possession, use and occupancy by injunction. Sproat v. Durland, 35 P 682; Reaves v. Oliver, 41 P. 353; Calhoun v McCornack, 54 P. 497.
Preliminary injunction is merged in a final judgment, and liability upon preliminary injunction bond ceases when such judgment becomes final. Webber v. Wilcox, 45 Cal. 301; Lambert v Haskell, 80 Cal. 611, 22 P. 327.
A perpetual injunction is coterminous with the life of the homestead entry and has no force or effect upon the cancellation thereof. Shinn v. Young, 57 Cal. 525.
Gooler & Goer, for respondents.
The court could modify and dissolve a temporary injunction. Mayne v. Griswold, 3 Sandf. 484; Bertine v. Varian, 1 Edg. Ch. 343, 6 N.Y. Ch. L.Ed. 165; Morgan v. Tener, 83 Pa. 305; Mfgs. Nat. Bank v. Perry, 3 New Eng. 927, 144 Mass. 313, 11 N.E. 81.
The court could do no more than issue a temporary restraining order to protect rights previously determined. Forbes v. Driscoll, 31 N.W. 633.
By an injunctional order defendants were deprived of their property and restrained from entering thereon. Such order was void. Forman v. Healy, 11 N.D. 563, 93 N.W. 866; Dickson v. Dowe, 11 N.D. 404, 92 N.W. 797.
The court below had no jurisdiction to enter the judgment that was rendered in the case at bar. Grandin v. LeBar, 3 N.D. 446, 57 N.W. 241; Adams v. Couch, 26 Pa. 1009; Commager v. Dix, 28 Pa. 864; Marquez v. Frisbie, 101 U.S. 473, 25 L.Ed. 800; Johnson v. Towsley, 80 U.S. 72, 13 Wal. 72, 20 L.Ed. 485; Shepley v. Cowan, 91 U.S. 330, 23 L.Ed. 424; Empey v. Plugert, 64 Wis. 603, 25 N.W. 560.
The court had jurisdiction to maintain by injunction the statu quo until the land department had determined the right to the land in controversy. Wood v. Murray, 52 N.W. 356; Caldwell v. Robinson, 59 F. 653; Coldwell v. Smith, 1 Wash. 92; Woodsides v. Rickey, 1 Ore. 108; McQuiston v. Walton, 69 Pa. 1048; Mathews v. O'Brien, 84 Minn. 505, 88 N.W. 12; Hastay v. Bonness, 84 Minn. 120, 86 N.W. 896; Fulmele v. Camp, 20 Col. 495; Atherton v. Fowler, 96 U.S. 513, 24 L.Ed. 732; Marquez v. Frisbie, 101 U.S. 473, 25 L.Ed. 800.
Courts have no jurisdiction as long as title remains in the general government, and will not enforce a contract for sale of growing timber upon the land involved. Sims v. Morrison, 100 N.W. 88.
In November, 1901, the plaintiff made application at the United States land office at Devils Lake to enter the land in question as a homestead. The application was accepted, and in the following May the plaintiff attempted to take possession of the land under such homestead claim. The defendants (husband and wife) were in possession of the land, living upon it and farming it. They had ninety acres planted to crop. They refused to yield possession, and forcibly resisted plaintiff's attempts to obtain possession. The plaintiff thereupon commenced this action in June, 1902. The original complaint purported to set forth two causes of action. The first stated merely a cause of action at law for the recovery of the possession of the land, basing the plaintiff's right upon his homestead filing, and concluding with a prayer appropriate to such an action. The second cause realleges the allegations of the first and further alleges that there were ninety acres of growing crops on the land, which the defendants threatened and intended to harvest and remove for their own use; that the defendants were attempting and threatening to destroy a house plaintiff had erected on the premises, and were also threatening to resist with violence any attempt by plaintiff to enter or live on the land. It was further alleged that the defendants were insolvent, and that their acts were such as to cause the plaintiff irreparable damage, and to jeopardize his right to hold the land under the federal homestead laws. This second cause of action concludes with a prayer for judgment "perpetually restraining and enjoining the defendants, and each of them," etc., "from further trespassing upon plaintiff's said premises, and from in any manner interfering with or disturbing plaintiff, or any dwelling house which he has or may hereafter erect upon said premises, and from interfering with the growing crop on said premises, or harvesting, cutting or removing same therefrom." On this complaint, supported by the affidavits of the plaintiff and others, the plaintiff applied for and obtained from the district court an injunctional order prohibiting the defendants, and each of them, during the pendency of the action, from doing any of the acts which the plaintiff in his prayer for judgment sought to have perpetually enjoined. This order was applied for upon notice. The hearing was had July 2, 1902, but the order is dated September 5, 1902. The defendants appeared in the action by their attorney, Geo. P. Gibson, and served an answer which put plaintiff's alleged right to possession in issue, and set forth that the defendants had been in the possession of the land, living upon it and farming it, for several years, claiming it under the homestead laws of the United States, and that a contest concerning it was then pending. This answer was served July 2, 1902. On the same day the plaintiff's attorney served upon defendants' counsel an amended complaint. The only change effected by the amendment was to state substantially the same facts as the original complaint in one cause of action, instead of two. The prayer for judgment was substantially unchanged, except that, instead of demanding a judgment for the recovery of possession, as in the first cause of action in the original complaint, there was added to the former prayer for equitable relief a prayer for a "mandatory injunction requiring and compelling the defendants, and each of them," etc., "to remove from said premises, and deliver possession of the same, and the whole thereof, to plaintiff." On November 12, 1902, one of plaintiff's attorneys made an affidavit "that the above-entitled action was commenced by the service of a summons and complaint upon each of the defendants; that to said complaint the defendants answered; that thereafter, on the 2d day of July, 1902, the plaintiff served his amended complaint upon each of the defendants; that the defendants nor either of them has appeared, answered or demurred to said amended complaint, or in any manner appeared in opposition thereto, nor have the plaintiff's attorneys, or either of them, been served with an answer or demurrer in said action, nor have the defendants appeared in any manner in opposition to said complaint; that more than thirty days have elapsed since the service of said amended complaint." On the same day, without notice, the plaintiff's attorneys applied to the court to submit proof in support of the amended complaint, and for an order for judgment by default. The application was granted by an order as follows: ...
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