Stanley v. McCray

LECHE, J. Plaintiff alleges that she was in possession of certain property situated in or near the town of Hammond, when in December, 1924, she was violently disturbed in her possession by the defendants. The evidence shows clearly that plaintiff had been ousted from her possession in August, 1924, and therefore that she was not in possession when the alleged disturbance took place in December, 1924. According to Par. 1, Art. 49, C. P., the complainant in a possessory action must have been in the real and actual possession of the property at the instant when the disturbance occurred, in order to maintain the action. Plaintiff had been in possession previous to being ousted in August, 1924, hut her action is not based upon that disturbance, and by her pleadings, she has limited her right to the present action, to a disturbance alleged to have taken place in December, 1924. The district court properly dismissed her suit. Judgment affirmed.