Johns v. Schmidt

*385 The opinion of the court was delivered by Horton, C. J.:

The amended petition, among other things, alleged that the plaintiff is the owner and in the possession of the real estate therein described; that the defendant unlawfully entered upon the said premises; that he dug therefrom 150 growing trees of the value of $250 ; that he took and carried them away; that he converted them to his own úse ; that he severed from a building upon said realty, stones, lumber, boards, hardware, etc., the property of the plaintiff, of the value of $50; that he took and carried the same away, and that he converted the samé to his own use, to the damage of the plaintiff in the sum of $300. The plaintiff therefore made out a prima facie case by his petition, and the averments are sufficient to authorize him to introduce evidence to establish the same.

It is contended, however, on the part of the defendant, that upon the hearing of a motion to dissolve the temporary injunction granted at the commencement of the action, the court found that the property in dispute was personal property and belonged to tlie defendant, and that as the finding and order of the district judge at chambers .were never appealed from, the principles of res adjudieata, applies, which prevents the matter in the petition from being twice litigated. In this, counsel representing the defendant are mistaken. In the first place, the district judge has considerable discretion in vacating temporary injunctions, and when the reasons urged for and against the injunction are very nearly equally balanced, the order vacating cannot be reversed unless it can be said that the district judge abused his discretion. (Wood v. Millspaugh, 15 Kas. 14 .)

Further, the motion to vacate the temporary injunction was heard upon affidavits only, and the principle of res adjudieata does not apply to mere interlocutory motions of this kind so' as to make a decision rendered thereon conclusive between the parties when the case is called for trial upon its merits. As the plaintiff’s petition states a good cause of action, and one *386 upon which a judgment can be rendered, he is entitled to a trial in the district court of the county where it was filed, and upon testimony in his behalf of the witnesses produced by him in court. Testimony on paper is not like testimony from the lips; and ex parte affidavits are not as safe and satisfactory testimony upon which to dispose of a case as depositions. The affidavits heard upon the motion to vacate the temporary injunction necessarily refer to the allegations of the petition; but the inquiry in which they were used was incidental only to the matters examined, and not a full trial of the case. For these and many other reasons, the order dissolving the temporary injunction made at chambers did not prevent the court from hearing and trying the whole case upon the issues joined by the pleadings, when it was called for trial in regular form.

We cannot consider at this time the transcript of the action of Jacob Schmidt v. T. S. Johns, filed in this court September 3, 1884, because it is no part of the record of the case before us. It has not been made a part of the transcript by any proceeding in the district coui4 or in this court, and it must therefore be wholly disregarded.

Again, this proceeding cannot be dismissed on account oí the absence of the original petition. The amended petition has been substituted for the original petition, and takes its place. The answer of the defendant is to the amended and not to the original petition.

The judgment of the district court dismissing the action will be reversed, and the cause remanded for trial in accordance with the views herein expressed.

All the Justices concurring.