Wilson v. Smith

89 S.W. 1009, 6 Indian Terr. 108

• Court: Court Of Appeals Of Indian Territory
• Decided: October 27, 1905
• Status: Published

Opinion

Gill, J.

(after stating the facts). Under section 3351 of Mansfield’s Digest (Ind Ter. Ann. St. 1899, § 2285) we hold that the writ of possession provided for therein may be had at any time during the pendency of the action upon compliance with the conditions provided for in said section, and until such conditions are complied with the issuance of such writ by the clerk is nugatory and of no effect. We also hold that under said section and section 5055 of Mansfield’s Digest (Ind. Ter. Ann.St. 1899, § 3260) the complaint in the action must necessarily be verified. Before the writ can issue there must be filed with the clerk an affidavit of plaintiff “or some creditable person for him stating that plaintiff is lawfully entitled to possession of the premises mentioned in the complaint and that the defendant forcibly entered upon and detains the same or unlawfully detains the same after lawful demand therefor made.” Was such an affidavit filed in this case, either at the commencement of the suit or during its pendency? An affidavit by L. C. Andrews, made February 27, 1901, which was filed in a suit begun April 4, 1901, served as a basis for issuance of the first writ of possession. The language of the statute is in the present tense. Many things 'might intervene between February 27', 1901, and April 4, 1901, to change plaintiff’s right of possession, and we must hold that the statute requires an affidavit of right in plaintiff at the time of beginning suit, and, plaintiff having failed to file such an affidavit, the clerk was without authority to issue the first writ of possession.

But did plaintiff thereafter comply with the statute and acquire the right to the second writ of possession? The record discloses that the second writ of possession issued on February 25, 1902. Therefore, as disclosed in the corrected record, J. T. Blanton, a credible person and an attorney for plaintiff, filed a sufficient affidavit in the case to obtain the writ from the clerk of court. The second writ issued, plaintiff gave the re: quired bond to the United States marshal, defendant gave the retaining bond, and under section 3362 of Mansfield’s Digest (Ind. Ter. Ann.St. 1899, § 2296) was thereafter liable to plaintiff for such damage as the jury trying the main case should find due plaintiff.

Under the corrected record the court must modify its former decision and affirm the, judgment of the lower court.

Clayton, J., concurs. Raymond, C., J., not participating.