92 N.W. 144 (Neb. 1902), 12,962, State ex rel. Reynolds v. Graves

Docket Nº:12,962
Citation:92 N.W. 144, 66 Neb. 17
Opinion Judge:SULLIVAN, C. J.
Party Name:STATE OF NEBRASKA, EX REL. WILLIAM REYNOLDS, v. GUY T. GRAVES, DISTRICT JUDGE
Attorney:Hiram Chase, for relator. Thomas L. Sloan, contra.
Case Date:October 22, 1902
Court:Supreme Court of Nebraska
 
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Page 144

92 N.W. 144 (Neb. 1902)

66 Neb. 17

STATE OF NEBRASKA, EX REL. WILLIAM REYNOLDS,

v.

GUY T. GRAVES, DISTRICT JUDGE

No. 12,962

Supreme Court of Nebraska

October 22, 1902

ORIGINAL application for a writ of mandamus to compel the respondent, as district judge, to vacate an injunction. Writ allowed.

WRIT ALLOWED.

Hiram Chase, for relator.

Thomas L. Sloan, contra.

OPINION

[66 Neb. 18] SULLIVAN, C. J.

This action, brought for the purpose of compelling respondent, as judge of the eighth judicial district, to vacate two provisional injunctions allowed by him at the instance of Oran B. Phillips, grows out of a controversy over the right of possession of a quarter section of farming land in Thurston county. One eighty of the land is owned by Blanche R. Phillips, a minor, and the other eighty is part of the estate of Mary V. Phillips, deceased. On August 28, this year, Oran B. Phillips instituted two actions, one as guardian of Blanche R. Phillips and the other as administrator of the estate of Mary V. Phillips, to enjoin the relator from going upon the real estate in question and from interfering in any way with the crops growing thereon. The petitions in the two cases, except as to the property described and the averments of ownership and representative capacity, are substantially identical. One of them, omitting formal parts, is as follows:

"The plaintiff for cause of action against the defendant alleges:

"1. That the said plaintiff is the duly appointed, qualified and acting administrator of the estate of Mary V. Phillips, deceased.

"2. That the said Mary V. Phillips, deceased, died in said Thurston county, Nebraska, seized of real estate in said Thurston county described as follows, to wit: South [66 Neb. 19] half of the northwest quarter of section 24, township 25, north range 7, east of the 6th P. M.

"3. That the plaintiff as administrator aforesaid is charged with the duty of protecting the said property of the said decedent against loss, damage and destruction and is entitled to the possession, use and benefit and control of said property for and on behalf of the estate of the said decedent.

"4. That the defendant William Reynolds has committed repeated acts of trespass upon the said land of your petitioner's decedent by going upon the said land and by using the same without any right whatever and is threatening to repeat said acts of trespass and to continue said use of said lands regardless of the rights of your petitioner to the possession, use and benefit of the said lands all to the great and irreparable injury of the estate of your petitioner's decedent and to your petitioner as administrator aforesaid. And the said defendant in utter disregard of your...

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