Pybos v. McLaughlin , 2 Indian Terr. 432 ( 1899 )

■ Clayton, J.

The ease presented for our consideration is a suit for unlawful detainer, wherein the plaintiff is awarded possession of the premises, and the defendant given judgment for damages. The judgment does not state what the damages are for, but, as the only -damage that could accrue to a defendant in an action of this kind would be by reason of a wrongful eviction, it must be presumed that this was the element of damages. But as the court, by its last judgment, found that the defendant was not entitled to the possession of the property, she could not have been wrongfully evicted, and hence could not have been damaged. The question of improvements placed upon the premises by defendant cuts no figure in the case, as they could not have been assessed as damages in the case, the court having found that defendant was not entitled to possession of the premises, and therefore there could have been no agreement that the improvements were to hold the place until paid for. Therefore, if the court awarded the sum of §108 as damages for wrongful eviction, it was error, as defendant was not entitled to the possession of the premises; and if it was for the value of the improvements, the court erred in rendering such judgment, for, as- the law then stood, a simple claim for improvements could not have been adjudicated in a suit of this kind. The judgment of the lower court is reversed and remanded.

Townsend and Thomas, JJ., concur.