Johnson v. Bouton

• Decision Date: 17 November 1898
• Docket Number: 8418
• Citation: 77 N.W. 57,56 Neb. 626
• Parties: DANIEL D. JOHNSON ET AL. v. CHARLES A. BOUTON
• Court: Nebraska Supreme Court

77 N.W. 57

56 Neb. 626

DANIEL D. JOHNSON ET AL. v. CHARLES A. BOUTON

No. 8418

Supreme Court of Nebraska

November 17, 1898

ERROR from the district court of Scott's Bluff county. Tried below before NEVILLE, J. Reversed.

REVERSED.

F. A Wright and C. C. Wright, for plaintiffs in error.

George W. Heist and M. J. Huffman, contra.

OPINION

NORVAL, J.

In July, 1891, Daniel D. Johnson commenced an action in the district court of Scott's Bluff county to enjoin Charles A. Bouton from diverting or interfering with the waters of Winter creek. A temporary injunction was allowed by the judge of the district court of said county and Johnson, with William H. Wright and Thomas Roberts, as his sureties, entered into a bond or undertaking to the defendant to pay him all damages which he might sustain by reason of the suing out of said injunction, if it should be finally determined that the same ought not to have been granted. This undertaking was filed with, and approved by, the clerk of said court. Subsequently, in vacation, the judge of said court entered an order dismissing the cause. Thereupon this suit was instituted by Bouton against the principal and sureties upon the injunction bond. Plaintiff obtained judgment in the sum of $ 300, and the defendants have brought the record here for review.

A number of errors are assigned, based upon the admission of testimony, the giving of instructions, and the sufficiency of the evidence to sustain the verdict and judgment, which present for consideration substantially the same question namely, was the order entered during vacation dismissing the injunction suit without jurisdiction and void? A judge of the district court possesses only such authority or jurisdiction at chambers as is conferred by statute. (Ellis v Karl, 7 Neb. 381.) Authority is given a district judge in vacation to grant, dissolve, or modify a temporary injunction, but he is given no jurisdiction out of term time to make an order dismissing an injunction suit or to make any other final disposition of such cause. This was expressly ruled in Browne v. Edwards & McCullough Lumber Co., 44 Neb. 361, 62 N.W. 1070. The fact that the parties to the injunction suit stipulated that the decision on the merits should be entered by the judge in vacation is unimportant. That jurisdiction of the subject-matter cannot be conferred by agreement of parties is elementary. The record before us fails to show that...