State ex rel. Reynolds v. Graves

• Citation: 66 Neb. 17,92 N.W. 144
• Parties: STATE EX REL. REYNOLDS v. GRAVES, JUDGE.
• Decision Date: 22 October 1902
• Court: Supreme Court of Nebraska

66 Neb. 17

92 N.W. 144

STATE EX REL. REYNOLDS

v.GRAVES, JUDGE.

Supreme Court of Nebraska.

Oct. 22, 1902.

Syllabus by the Court.

1. A court or judge has no authority by a provisional injunction to transfer the possession of real or personal property from one litigant to another.

2. Such an order, made by a judge at chambers, without a hearing or any opportunity to be heard, held to be, not merely erroneous, but absolutely void.

3. The superintendent authority of the king's bench over inferior tribunals is, to the extent that it may be exercised by the use of the writ of mandamus, included in and part of the original jurisdiction given by the constitution to this court.

4. A judge of the district court may, if the ordinary remedy is inadequate, be compelled by mandamus to vacate an injunction granted by him without jurisdiction or authority.

Application by the state, on relation of William Reynolds, for a writ of mandamus to Guy T. Graves, judge of the Eighth judicial district. Writ granted.Hiram Chase, for relator.

Thomas L. Sloan, for respondent.

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 80 of the land is owned by Blanche R. Phillips, a minor, and the other 80 is part of the estate of Mary V. Phillips, deceased. On August 28th, 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, seised of real estate in said Thurston county described as follows, to wit: South 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, 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 petitioner's rights and of the rights of the estate of your petitioner's decedent, has threatened to remove from said land the crops of corn and wheat now being upon said land and being the property of the said estate of your petitioner's decedent and of your petitioner as administrator aforesaid, and to dispose of the same to his own use and benefit, and to deprive your petitioner as administrator aforesaid of the said property, and will, unless restrained by order of this court, remove, sell, and dispose of said crops of wheat and corn, and will continue his said trespasses upon the said land, to the great and irreparable injury of the estate of your petitioner's decedent and of your petitioner as administrator aforesaid. (5) That the defendant is insolvent, and that a judgment for damage could not and cannot be enforced against him, and that the plaintiff has no adequate remedy at law. Wherefore your petitioner prays for a temporaryorder of injunction restraining the defendant and his servants and agents from trespassing upon the land above described, and from removing or attempting to remove the crops of corn and wheat now being upon said land, and from disposing of or in any manner interfering with said property, or any part thereof, until the final hearing of the cause, and on final hearing of the cause said injunction be made perpetual, and for such other relief as is just and equitable.” Both petitions were presented to respondent as judge of the district court, and upon each of them he indorsed the following order: “Upon the reading the petition of the plaintiff, duly verified, and for good cause shown, it is ordered that an injunction be granted herein enjoining the defendant and his servants and agents from trespassing upon the following described land, to wit: South half of the northwest quarter of section 24, township 25 north, range 7 east of the 6th P. M., in Thurston county, Nebraska,--and from removing or attempting to remove the crops of corn and wheat now being upon said lands, and from disposing of or in any manner interfering with said property, or any part thereof, until the further order of the court, upon the plaintiff executing and delivering to the clerk of this court an undertaking to the defendant in the sum of...