Browne v. Edwards & McCulloch Lumber Co.
| Decision Date | 03 April 1895 |
| Citation | 44 Neb. 361,62 N.W. 1070 |
| Court | Nebraska Supreme Court |
| Parties | BROWNE ET AL. v. EDWARDS & MCCULLOCH LUMBER CO. |
1. “The judges of the several district courts, as such, have no inherent authority at chambers whatever, but only such as the statutes give them.” Ellis v. Karl, 7 Neb. 381, followed.
2. The authority of district judges at chambers in injunction cases is limited by law to the power “to grant, dissolve or modify temporary injunctions,” and does not include a final disposition of the cause, either by dismissal or otherwise.
3. No right of action accrues upon an injunction bond, given on the granting and issuance of a temporary injunction in an action commenced to obtain a perpetual injunction, until the final determination of the suit in which the temporary order was granted; and an action at law instituted on the undertaking prior to the final disposition of the cause is prematurely brought, and cannot be maintained.
4. Held, that the evidence in this case does not show a final determination of the suit in which the injunction bond upon which it is based was given.
Error to district court, Cedar county; Norris, Judge.
Action by the Edwards & McCulloch Lumber Company against John F. Browne and others on an injunction bond. Plaintiff had judgment, and defendants bring error. Reversed.A. M. Gooding and Benj. M. Weed, for plaintiffs in error.
J. C. Robinson and Wilbur F. Bryant, for defendant in error.
It appears from the pleadings in this case that on the 11th day of September, 1891, John F. Browne, of plaintiffs in error (hereinafter referred to as “plaintiffs”), commenced an action in the district court of Cedar county against defendant in error (hereinafter called the “Lumber Company”), and obtained a temporary order of injunction by which the lumber company was restrained from selling or causing to be sold, or in any manner interfering with Browne's right of possession of, certain personal property of which he then held possession, as sheriff of Cedar county, by virtue of an execution issued by the county court of said county in an action wherein the lumber company was plaintiff and Browne defendant. That, upon the granting of the temporary injunction, an undertaking was executed by John F. Browne, as principal, and Peter Garney, Joseph Morton, Theodore Beste, and T. H. Cole, as sureties. That a motion was filed by the lumber company to vacate the temporary injunction, and upon the hearing of the motion by the judge of the district court at chambers, during vacation, the order of injunction was dissolved; and it is claimed the judge then further ordered or attempted a dismissal, or to make a full disposition of the cause. The lumber company then instituted this action upon the injunction undertaking to recover its damages alleged to have been suffered by reason of the operation of the order of injunction while in force, and in a trial of the issues to the court, a jury having been waived, was successful, and obtained a judgment for such damages; and from which disposition of the issues these proceedings in error have been prosecuted to this court. Subsequent to the filing of the papers here, a motion was interposed on behalf of the lumber company asking the court to strike the bill of exceptions from the files, assigning as a reason therefor that it was not prepared and served within the time prescribed by law, or that fixed by the trial court; also to dismiss the case for want of prosecution. And the questions raised by this motion are argued in connection with the merits of the case in the brief presented for the lumber company. But it appears from the record that on October 24, 1893, the motion was denied, hence we will not give it further consideration at this time.
It is contended by plaintiffs that the judge had no jurisdiction at chambers to consider the merits of the cause, or to finally dispose of it by dismissal or otherwise. Section 23 of article 6 of the constitution provides that “the several judges of the courts of record, shall have such jurisdiction at chambers as may be provided by law.” And it has been provided by the legislature (see sections 39, 57, c. 19, Comp. St. 1893) that “any judge of the district court may sit at chambers at any time and place within his judicial district, and while so sitting shall have the power (1) to grant, dissolve or modify temporary injunctions; * * * (4) to discharge such other duties or to exercise such other powers as may be conferred upon a judge in contradistinction to a court.” And in section 252 of our Code of Civil Procedure, under the heading “Injunction,” the allowance of an injunction is provided for as follows: “The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, by the supreme court, or any judge thereof, the district court or any judge thereof or in the absence from the county of said judges, by the probate judge thereof, upon it appearing...
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