Browne v. Edwards & McCullough Lumber Company

• Decision Date: 03 April 1895
• Docket Number: 6390
• Citation: 62 N.W. 1070,44 Neb. 361
• Parties: JOHN F. BROWNE ET AL. v. EDWARDS & MCCULLOUGH LUMBER COMPANY ET AL
• Court: Nebraska Supreme Court

62 N.W. 1070

44 Neb. 361

JOHN F. BROWNE ET AL. v. EDWARDS & MCCULLOUGH LUMBER COMPANY ET AL

No. 6390

Supreme Court of Nebraska

April 3, 1895

ERROR from the district court of Cedar county. Tried below before NORRIS, J.

REVERSED AND REMANDED.

A. M Gooding and Benjamin M. Weed, for plaintiffs in error.

Wilbur F. Bryant and J. C. Robinson, contra.

OPINION

HARRISON, J.

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: "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 secs. 39 and 57, ch. 19 Comp. Stats., 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 afterward, 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 satisfactorily to the court or judge by the affidavit of the plaintiff or his agent that the plaintiff is entitled thereto;" and in section 263 the right to move to vacate the order of injunction is given, and it is therein stated that such application may be made "to the court in which the action is brought or any judge thereof," etc. In the case of Ellis v. Karl, 7 Neb. 381, this court said that under the constitution "the judges of the several district courts, as such, have no inherent authority at chambers whatever, but only such as the statutes give to them." We have quoted, or given, the substance of the statutes in which authority is conferred upon a judge at chambers in regard to injunctions, and it is clearly limited in respect to a motion to vacate, such as was...