Anheuser-Busch Brewing Association v. Hier

• Decision Date: 23 June 1898
• Docket Number: 10053
• Citation: 75 N.W. 1111,55 Neb. 557
• Parties: ANHEUSER-BUSCH BREWING ASSOCIATION, APPELLEE, v. BENNETT HIER, APPELLANT
• Court: Nebraska Supreme Court

75 N.W. 1111

55 Neb. 557

ANHEUSER-BUSCH BREWING ASSOCIATION, APPELLEE, v. BENNETT HIER, APPELLANT

No. 10053

Supreme Court of Nebraska

June 23, 1898

APPEAL from the district court of Saline county. Heard below before HASTINGS, J. Affirmed.

AFFIRMED.

F. I Foss and Norman Jackson, for appellant.

E. S Abbott, contra.

OPINION

SULLIVAN, J.

The Anheuser-Busch Brewing Association brought an action in the district court for Saline county to subject to the payment of a judgment recovered by it against Bennett Hier certain money belonging to the latter and held by Albertus N. Dodson in his official capacity as clerk of said court. In that action the plaintiff had judgment, in obedience to which Dodson paid to it the sum of $ 584.55 out of the funds of Hier then in his hands. Afterwards an appeal was prosecuted to this court, where the judgment was reversed and the cause dismissed. (Anheuser-Busch Brewing Ass'n v. Hier, 52 Neb. 424, 72 N.W. 588.) Hier then moved for a restitution of the money paid to the plaintiff while the judgment was in force. The district court denied the motion on the ground that it no longer possessed jurisdiction of the cause. The correctness of this ruling is the only question presented for decision by this appeal.

Appellant's right to have restitution of the money on reversal of the judgment cannot be doubted. (6 Am. & Eng. Ency. Law [1st ed.] 835; Eames v. Stevens, 26 N.H. 117; Flemings v Riddick, 46 Va. 272, 5 Gratt. 272; Bickett v Garner, 31 Ohio St. 28.) And had the record disclosed the fact of payment this court would have made an appropriate order for the protection and enforcement of that right. But we were not informed that any payment had been made under the erroneous judgment, and no application was made for a vacation or modification of the absolute order of dismissal entered here. So when the motion for restitution was presented the cause was not pending and the district court was without jurisdiction of the parties. After the cause was dismissed the litigants were no more subject to the orders of the court than they were before the action was instituted. (Stone v. Smoot, 39 Ill. 409; Whatley v. Slaton, 36 Ga. 653; Morgan v. Campbell, 54 Ill.App. 242; American Burial Case Co. v. Shaughnessy, 59 Miss. 398; Crawford v. Cheney, 12 Vt. 567; Brooks v. Cutler, 18 Iowa 433; Williamson v. Williamson, 1 Met. [Ky.] 303.) In the last mentioned case it was held that a motion for apportionment of costs could not be entertained after the case had been dismissed; and in Morgan v. Campbell, supra, it is said: "By the order dismissing the cause the parties were out of court, jurisdiction of the court over them was gone, and they stood as they were before the suit was commenced." In the case of Fleming v. Riddick, supra, it was held that the court possessed inherent power to compel the restitution of money collected by one of the litigants from the other under...