Powell v. Canaday

• Citation: 69 S.W. 686,95 Mo. App. 713
• Parties: POWELL v. CANADAY.
• Decision Date: 04 August 1902
• Court: Court of Appeal of Missouri (US)

69 S.W. 686

95 Mo. A. 713

POWELL v. CANADAY.

Court of Appeals at St. Louis, Missouri.

August 4, 1902.

INJUNCTION — CUTTING TIMBER — POSSESSION — BURDEN OF PROOF — APPEAL — REVIEW.

1. A court of equity, on a proper showing, will enjoin the cutting of timber on real property where the timber constitutes the chief value thereof; but plaintiff, among other things, must show possession of the land in question. Where the actual possession is in great doubt, depending upon conflicting evidence, it is proper for a court of equity to leave the party to seek other remedies, and deny an injunction.

2. Plaintiff sought, upon grounds stated in the opinion, to enjoin the cutting of trees by defendant from land claimed by plaintiff, and the trial court sustained a demurrer to the evidence upon the hearing of a motion to dissolve. Held, that the ruling was right upon the facts stated in the opinion, where plaintiff's title and possession were doubtful.

3. The burden of proof of possession in the case outlined in the foregoing headnote is upon the plaintiff.

4. Where plaintiff's case for injunctive relief depends in part upon the fact of defendant's insolvency, clear and cogent proof thereof is required. On a review of the evidence on this point, it is held insufficient.

5. In equity cases, where a large part of the evidence is oral, an appellate court will not reverse a finding of fact by a trial judge unless contrary to the preponderance of evidence.

6. A demurrer to evidence is not applicable to proceedings in equity, but an order sustaining it is not reversible error, where the plaintiff's case is fatally deficient for want of equity.

7. The probate court, or judge thereof in vacation, has jurisdiction to grant a temporary injunction when no judge of the circuit court is in the county. Where such an order is made, it will be presumed, in the absence of any contrary showing, that the facts exist to warrant the order, under section 3628, Rev. St. 1899.

8. Where a court entry adjudges that a defendant he discharged "hence without day," it appears that the entry should be held a final judgment.

9. An appeal will lie in Missouri from an interlocutory order dissolving an injunction. Rev. St. 1899, § 806.

10. Whether or not injunction is an appropriate remedy to maintain the integrity of real property during litigation concerning the title, that question cannot be raised on appeal when no claim on that subject was advanced in the trial court.

11. Only such errors as were decided in the trial court against the party appealing are subject to review.

(Syllabus by the Judge.)

Appeal from circuit court, Pemiscot county; Henry C. Riley, Judge.

Action by T. Cole Powell against J. W. Canaday. Judgment for defendant, and plaintiff appeals. Affirmed.

R. B. Oliver and Farris & Oliver, for appellant. Roberts & Hunt, for respondent.

BARCLAY, J.

This is a suit in equity to enjoin defendant from cutting and removing timber from a quarter section of land in Pemiscot county, Mo. The gist of the petition is that plaintiff is the owner of the land in question, in possession thereof, and that defendant, by himself and agents, entered thereon without authority, cut down and destroyed valuable trees, and threatens to continue so to do; that the damage to the real property of plaintiff is irreparable, because the chief value of said land consists in the trees and timber growing thereon; that defendant is insolvent, not able to respond in damages; that plaintiff is wholly without adequate remedy at law, etc. The prayer is that defendant and his agents be perpetually enjoined from continuing the acts complained of. The petition was duly verified by plaintiff. A temporary restraining order was made, pending the suit, by the probate court of Pemiscot county, presumably in circumstances permitting such an order, under the statute regulating injunctions. Rev. St. 1899, § 3628. Thereafter defendant filed a motion to dissolve the injunction, on the general grounds that there was no equity in the bill, and that its allegations were untrue. The cause came on to be heard upon the motion to dissolve. Plaintiff put in his testimony. At the end of it, the defendant submitted a "demurrer to the evidence," which the court sustained. Thereupon was entered the following judgment or order: "It is therefore considered and adjudged by the court that the writ of injunction herein be dissolved; that the defendant be released from the operations and restrictions thereof, and go hence without day. It is further considered and adjudged that the defendant recover of the plaintiff the costs and charges herein expended, and that he have execution therefor." In due time plaintiff made a motion to set aside the foregoing judgment on various grounds, reviewed in this opinion so far as they require remark. The motion having been overruled, plaintiff appealed to this court.

1. It is not important to analyze at this time the entry from which the appeal was taken, to decide whether it is a final judgment, or merely an interlocutory order dissolving the temporary injunction. In either event, the plaintiff had a right to appeal under the existing law. Rev. St. 1899, § 806. We take it, however, that a final judgment was intended, inasmuch as defendant was discharged "hence without day." But we need not pause to investigate further the form of the trial court's conclusion.

2. Although a demurrer to the evidence is not strictly applicable to a proceeding in equity, it may be treated as a practical mode of arriving at the view of the trial judge in a proceeding of this kind. At the close of plaintiff's testimony, the learned judge announced as his...