Walker v. Norris

• Decision Date: 14 December 1940
• Docket Number: No. 6193.,6193.
• Parties: WALKER v. NORRIS.
• Court: Missouri Court of Appeals

145 S.W.2d 972

WALKER v. NORRIS.

No. 6193.

Springfield Court of Appeals. Missouri.

December 14, 1940.

Rehearing Denied December 30, 1940.

Appeal from Circuit Court, Howell County; Will H. D. Green, Judge.

"Not to be published in State Reports."

Suit for mandatory injunction by Flora R. Walker against G. J. Norris. From a judgment dismissing the petition, and dissolving a temporary order of injunction, plaintiff appeals.

Affirmed.

G. Purd Hays, of Ozark, for appellant.

Tom R. Moore, of Ozark, for respondent.

FULBRIGHT, Judge.

This is a suit in which appellant, the plaintiff, seeks a mandatory injunction requiring respondent, the defendant, to quit the possession of certain lands described in the petition and deliver same to him and to restrain respondent from committing waste and trespass thereon. The suit was originally instituted in the Circuit Court of Christian County and a temporary mandatory injunction granted. Thereafter, upon application for a change of venue the cause was sent to Howell County, where, upon a trial the injunction was denied and "the petition dismissed and the temporary order of injunction dissolved." Whereupon, plaintiff-appellant duly appealed from said order and judgment to this court.

The petition in part is as follows:

"Plaintiff states that at all the times hereinafter mentioned she was and is the owner of a certain farm or tract of land lying and being situate in the County of Christian and State of Missouri, described as follows to-wit: The North Half of the North-West Quarter, the North-West Quarter of the North-East Quarter, all in Section 24, Twp. 27, in Range 21; and the East Half of the North-East Quarter of Section 23, in Twp. 27, in Range 21, containing in all 200 acres more or less.

"Plaintiff states that in the years 1936 and 1937 she rented or leased the above described tracts of land to G. J. Norris, and that his time of rental contract ended on the 31st day of December, 1937.

"That defendant failed and refused to give the plaintiff possession of her said lands and that plaintiff instituted an Unlawful Detainer suit which is now pending in the circuit court on a motion for new trial; that the said judgment in the circuit court was for plaintiff, and that defendant filed his motion for new trial which is now pending in the Circuit Court of Christian County, Missouri, and that the defendant herein is still in the possession of all the plaintiff's land, and still refuses to vacate the premises so that plaintiff can have possession of her said land; * * *.

"Plaintiff therefore prays that the defendant be restrained and enjoined from keeping plaintiff out of possession of her said property, and that a mandatory writ be issued ordering and demand defendant, G. J. Norris, to prevent him from making waste and trespassing and to vacate the said house and barn and to remove all his property out and off of the plaintiff's premises and to deliver up possession of all of the lands herein described to plaintiff, immediately, and for such other and further relief as to the court shall seem just and right in the premises."

The answer, in part, is as follows: "Defendant for special plea, to said cause of action informs the court, that at the time this suit and action was filed there was pending between the identical parties a certain suit and action, involving the possession of the lands set forth in plaintiff's petition, for unlawful detainer, which had been decided, and a motion for new trial pending, that was undisposed of, when this suit and action was tried, but notwithstanding the same, while such was pending and undisposed of, and while a motion for new trial was pending the plaintiff herein sued out, this suit and action, without right in the premises, and under a temporary writ issued, in this cause dispossessed the defendant of said...