The opinion of the court was delivered by
Dennison, J. :The record presents only one question for us to consider in this case : Does the petition set forth such a statement of facts as would entitle *445the plaintiff below', this defendant in error, to the relief demanded? The petition alleges —
“That on July 28 or July 29, 1890, without any permission from this plaintiff, and without any warrant dr authority of law, said defendants, being husband and w'ife, unlawfully and with force and arms entered upon said land and broke the close of this plaintiff, and are now plowing up the clover and orchard-grass growing thereon, which, is very valuable ; that if said defendants are permitted to continue their trespasses it will be to the great and irreparable injury of this plaintiff.”
The only allegation in the petition as to the acts of the plaintiffs in error, for which the injunction is asked, is that they “unlawfully and with force and arms entered upon said land and broke the close of this plaintiff, and are now plowing up the clover and orchard-grass thereon, which is very valuable.” This describes a trespass, and nothing more. Injunction will not lie to restrain the commission of a pure, naked and simple trespass. (Gulf Rld. Co. v. Wheaton, 7 Kas. 282.) The petition further alleges “that if said defendants are permitted to continue their trespasses it will be to the great and irreparable injury of this plaintiff.” The attorneys for this defendant in error evidently understood that the acts complained of were merely acts of trespass, and so allege in their petition. The prayer of the petition is as follows :
“ Wherefore, this plaintiff prays that said defendants, and all acting under them, be enjoined and restrained from further interfering with the possession of said plaintiff, and from entering upon said real-estate property, and that at the next sitting of this court plaintiff may have a nunc pro tunc order of judgment in said cause, and upon the final hearing hereof said injunction ma/ be made perpetual; and for all other and proper relief.”
*446If this defendant in error had obtained all he demanded as to the injunction, he would have obtained an order restraining these plaintiffs in error from further trespassing upon the land set out in the petition. As to the statement that “it will be to the great and irreparable injury of the plaintiff,” we do not think the facts set out in the petition will warrant this assertion. There is no allegation that the defendants in said cause were insolvent, or that a judgment for damages against them would not be collectible. On ^he contrary, the petition seems to show, by inference at least, that this defendant in error owes Joab Bridges an unpaid balance due him upon the contract for the land described in the petition.
■ As to the nunc pro time order of the entry of judgment, there seems to be no controversy or dispute as to the fact that the judgment was rendered in the case of Bridges against Sargent, and that no appeal had been taken from said judgment. The question is, had the court the right to make the order for the entry of said judgment as of March 11, 1887, and was this a proper proceeding in which to do so ? While we do not question the right of the court to make the order in a proper proceeding, we must hold that this is not a proper proceeding in which to do so.
The judgment of the court below is reversed, and the case remanded for further proceedings.
All the Judges concurring.