The opinion of the court was delivered by
Martin, C. J. :The proceedings in this case were very irregular. The action was commenced December 15, 3891, -and the first term of the court thereafter was fixed for the first Tuesday of January, 1892. The pleadings were not made up, and the time for framing the issues had not expired. The action was not triable at the January term except by consent of parties. (§ 315, Code.) The order granted on December 18 was called a restraining.order, and not a temporary injunction, and the fact that no bond was fixed by the court indicated that a temporary injunction was not contemplated; but however this may be, the court was not justified in forcing the defendants into a final trial at the January term and before the issues were made up. It seems probable from the record that the defendants did not understand that a trial was taking place on the merits until the proceeding was well under way, and both objected to such a summary disposition of the case. The ruling of the court on the demurrer of the sheriff was correct, but the amendment of the petition was of no avail, for no allegation was made connecting the Anthony National Bank with the cause of action in any way, and the court erred in overruling its demurrer. Looking at the record as now presented, it would appear that substantial justice was done so far as the litigation related to the 140 acres for which the *27salt company obtained a deed. But as the case was tried without issues of fact being framed, and before the defendants were bound to anticipate that a trial on the merits would be had, we cannot say that they were not prejudiced by reason of the hasty and summary action of the court. Leave should be granted to all parties to file amended pleadings with a view to a trial upon issues of fact.
The judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring.