Boyd v. State

• Decision Date: 11 February 1886
• Parties: JAMES E. BOYD, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 925

19 Neb. 128

JAMES E. BOYD, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

February 11, 1886

ERROR to the district court for Douglas county. Heard below before NEVILLE, J.

Judgment reversed and proceeding dismissed.

John D Howe, for plaintiff in error.

William Leese, Attorney General, for the state.

OPINION

COBB J.

The record in this case discloses the following state of facts The line and track of the Omaha Horse Railroad runs along and through St. Mary's avenue and across Seventeenth street, in the city of Omaha. At the date of the transactions involved in this action, the city of Omaha was engaged in constructing a sewer in and along Seventeenth street and across St. Mary's avenue. This work was being done by contract, McHugh, McGavock & Co. being the contractors with the board of public works of said city for the constructing of said sewer. On or about the first day of November, 1882, William W. Marsh, the sole owner of said Omaha Horse Railroad, filed his petition in the district court of Douglas county against said McHugh, McGavock & Co., alleging, among other things, that said contractors were engaged in the constructing of said sewer in and along said St. Mary's avenue and across Seventeenth street; that he, the said plaintiff, had "lately, in order to prevent the tearing up of his track, and thus preventing the running of cars on said avenue, built a bridge eight feet wide and twenty feet long across said Seventeenth street at its intersection with St. Mary's avenue aforesaid, upon which he has laid his said track and is now running his cars; that said sewer is to cross said avenue directly under the center of said bridge and twenty-one feet under the same; that defendants can, with very little trouble, excavate for said sewer under said bridge, but instead of doing so they propose and threaten to tear up said bridge and said track at the intersection of Seventeenth street and St. Mary's avenue, * * * and so stop the running of cars on said line of street cars, to the great and irreparable injury of the plaintiff," etc., with prayer for "judgment against the defendants, perpetually restraining and enjoining them, and each of them, their agents, servants, laborers, and employes, from tearing up said bridge or track at the intersection of Seventeenth street and St. Mary's avenue, in the city of Omaha aforesaid, or in any manner interfering therewith, and that until the final hearing of this action said defendants, and each of them, their agents, servants, laborers, and employes, and each of them, may, by the temporary order of the court, or judge, be restrained and enjoined from tearing up said street car track and said bridge on St. Mary's avenue at its intersection with Seventeenth street, in said city of Omaha, and from in any manner interfering therewith," and for general relief, etc.

A temporary injunction, in conformity to the prayer of the said petition, was thereupon granted by the judge of said court; and thereupon a summons was duly issued by the clerk of said court, directed to William McHugh and Alexander McGavock, endorsed "Injunction allowed," and served upon the said defendants.

It further appears that on the 11th day of November, 1882, an order was issued by the judge of said court to James E. Boyd, that he "be and appear before the said court at the court-house in the city of Omaha, on Saturday, December 16, 1882, at 10 o'clock A. M., to show cause why an attachment for contempt should not issue against him for a disobedience of the former order of the court in this cause, granting a provisional injunction." The said order having been duly served, the said James E. Boyd appeared in court on the return day thereof; whereupon a cause was duly entered in said court, entitled "State of Nebraska vs. James E. Boyd," and the following entry made therein: "And now comes the said James E. Boyd, on the return day of the order served on him, to show cause why an attachment should not be issued against him for contempt of the court, alleged to have been committed by him in advising and directing and procuring the violation of the injunction issued in the case of William W. Marsh against William McHugh and Alexander McGavock, and after hearing the said James E. Boyd, as showing cause, and the evidence sustaining said charge against him, it is considered by the court that no cause is shown against the issuing of such attachment, and it is ordered by the court that an attachment be issued against the said James E. Boyd to answer for said contempt."

Said attachment being issued, was, on the 23d day of December, 1882, duly returned by the sheriff of Douglas county, with the said James E. Boyd in custody, before the court, whereupon the following record was made and entered: "Now comes the said James E. Boyd in custody of the sheriff, and was examined under oath touching his alleged contempt; on examination whereof the court do find that he has been guilty of the same, to which finding of the court the defendant excepts. It is therefore considered and adjudged by the court that a fine of two hundred dollars be and hereby is imposed upon the said James E. Boyd," etc. Whereupon the cause was brought to this court on error.

Counsel for plaintiff in error makes several points in his petition in error and in his brief; but it will only be considered necessary to examine one of them:

It appears from the record that at the date of these transactions the plaintiff in error was...