Thomas v. Robinson

• Decision Date: 30 October 1902
• Citation: 92 N.W. 70
• Parties: THOMAS v. ROBINSON.
• Court: Iowa Supreme Court

92 N.W. 70

THOMAS

v.ROBINSON.

Supreme Court of Iowa.

Oct. 30, 1902.

Appeal from district court, Harrison county; W. R. Green, Judge.

Action to enjoin trespass upon, and exercise of ownership over, a certain tract of land. The decree was for plaintiff, from which defendant appeals. Affirmed.J. S. Dewell, for appellant.

Roadifer & Arthur and Frank Tamisiea, for appellee.

PER CURIAM.

For appellant it is contended that no ground of equitable relief as against defendant was shown, for the reason that a court of equity will not by injunction interfere with the legal title, and make its writ serve the purpose of a writ of ejectment; but there is no merit in this contention. The jurisdiction of equity to grant relief against repeated trespasses where the legal title has been established in the plaintiff is well settled. The real contention in the case is as to the plaintiff's title, and it is said that in a decree entered in this court in pursuance of the opinion in the case of Smith v. Miller, 105 Iowa, 688, 70 N. W. 123, 75 N. W. 499, the title of the premises in controversy was found to be in the defendant. It will be noticed, however, that the opinion in the above case directs that the cause be remanded to the district court for a decree. After such order it was not competent for this court to enter a decree here, and it appears that by subsequent action the decree which was entered was set aside. It is true that no service of the motion to set aside such a decree seems to have been served upon H. J. Robinson, defendant's grantor, who was a party to the case of Smith v. Miller; but that is immaterial. If the decree was entered in this court without jurisdiction, then it might be set aside by the court on its own motion, and without notice. Appellant, therefore, is not entitled to any benefit of the decree which was erroneously entered in this court.

Without setting out the testimony, which, it may be confessed, is in serious conflict, it is sufficient to say that the record does not show title of defendant to the premises in controversy, and that plaintiff appears to have been in possession thereof as owner at the time that defendant attempted to exercise acts of ownership with reference thereto. There is sufficient evidence to sustain plaintiff's right, in the absence of any evidence for defendant of a better right to the premises, and we find no such evidence in the record. We are compelled to say, as was said in the opinion in Smith...