Harbin v. Love
| Decision Date | 25 October 1929 |
| Docket Number | 27143 |
| Citation | 227 N.W. 145,119 Neb. 76 |
| Parties | CHARLES B. HARBIN, APPELLANT, v. DON L. LOVE, MAYOR, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Motion for allowance of supersedeas. Motion overruled.
Motion for a supersedas bond overruled. SUPERSEDEAS DENIED.
Syllabus by the Court.
In a case where a permanent injunction is denied by the trial court, a plaintiff is not entitled to a supersedeas as a matter of statutory right, unless at the time of the trial there is in effect a temporary injunction. A temporary restraining order cannot be continued in effect in such a case by supersedeas bond.
Whether the order in effect at the time of trial is a temporary restraining order or a temporary injunction is to be determined from the form and substance of the order considered in connection with the entire record in the case.
A continuance of the hearing on a temporary injunction from the time provided in the restraining order is not sufficient, of itself, to convert a restraining order into an injunction. It is not a temporary injunction if it contemplates a hearing on the application as to whether a temporary injunction shall be allowed.
An order, which is a restraining order when granted, cannot in effect become an injunction without the giving of a new bond. The bond securing the restraining order does not give effect to the injunction and make it operative.
The record in this case has been examined and the order in effect in this case at the time of trial held not to be a temporary injunction.
This court will not consider the merits of the issue in a case, to be heard here de novo, upon a motion to fix supersedeas where such consideration is neither necessary nor proper to a determination of said motion.
Appeal from District Court, Lancaster County; Shepherd, Judge.
Suit by Charles B. Harbin, doing business under the firm name and style of Automaton Company, against Don L. Love, Mayor, and others. Judgment dissolving a restraining order, and plaintiff appeals. On motion for supersedeas. Supersedeas denied.
Sanden, Anderson, Laughlin & Gradwohl, for appellant.
Frank A. Peterson, Lloyd E. Chapman, Max G. Towle and Farley Young, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.
This is a suit in equity brought originally in the district court for Lancaster county, Nebraska, for an injunction preventing the officials of the city of Lincoln and Lancaster county from seizing and confiscating certain vending machines and from interfering with the lawful operation of the same. The trial court found that the vending machines in question were gambling devices, and that an injunction should not be allowed, and dissolved the restraining order. The trial court denied plaintiff's application for a supersedeas bond.
Subsequently, the defendant filed a transcript in this court and a motion for supersedeas, supported by printed brief representing that the decree of the trial court dissolved a temporary injunction existing in favor of plaintiff. Relying upon this showing, an order of the court was entered sustaining motion for supersedeas and fixing the amount of the bond at $ 1,000. Upon a motion of defendants, this order was vacated, for the reason that the order entered in this court allowing a supersedeas was made upon motion without notice, which is contrary to the rules of the court. Thereupon the plaintiff filed a motion for a supersedeas and served notice on defendants. The defendants made a showing resisting the motion for the following reasons, which we will discuss in the order presented:
(1) That no temporary injunction was ever granted by the district court in this cause, but only a temporary restraining order, which was dissolved after a trial on the merits, and which restraining order cannot be superseded.
(2) That the slot machines which the appellant seeks to prevent the appellees from molesting are gambling devices and used for gambling purposes, and in which the appellant can have no property rights by law.
(3) That this court is without jurisdiction to grant a supersedeas herein for the reason that more than twenty days have elapsed since the entry of the final order in the cause in the district court.
As a matter of statutory right the plaintiff is entitled to a supersedeas bond upon the dissolution of a temporary injunction.
"In case of the dissolution or modification by any court, or any judge at chambers, of any temporary order of injunction which has been or may hereafter be granted, the court or judge so dissolving or modifying said order of injunction shall, at the same time, fix a reasonable sum as the amount of a supersedeas bond, which the person or persons applying for said injunction may give, and prevent the doing of the act or acts, the commission of which was, or may be sought to be restrained by the injunction so dissolved and modified." Comp. St. 1922, sec. 8751.
The force and effect of the supersedeas, if given, is defined by section 9141, Comp. St. 1922, as follows:
"No appeal in any case shall operate as a supersedeas, unless the appellant or appellants shall within twenty days next after the rendition of such judgment or decree, or the making of such final order, execute to the adverse party a bond with one or more sureties as follows: * * * When the judgment, decree or final order dissolves or modifies any order of injunction which has been or hereafter may be granted, the supersedeas bond shall be in such reasonable sum as the court or judge thereof in vacation shall prescribe, conditioned that the appellant or appellants will prosecute such appeal without delay, and will pay all costs which may be found against him or them, on the final determination of the cause in the supreme court; and such supersedeas bond shall stay the doing of the act or acts sought to be restrained by the suit,...
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