Lininger v. Glenn

• Decision Date: 14 October 1891
• Citation: 49 N.W. 1128,33 Neb. 187
• Parties: GEORGE W. LININGER ET AL. v. JOHN P. GLENN ET AL
• Court: Nebraska Supreme Court

49 N.W. 1128

33 Neb. 187

GEORGE W. LININGER ET AL. v. JOHN P. GLENN ET AL

Supreme Court of Nebraska

October 14, 1891

ERROR to the district court for Gage county. Tried below before BROADY, J.

Judgment affirmed and cause dismissed.

Hazlett & Bates, for plaintiffs in error, cited: Sioux City & P R. Co. v. Washington Co., 3 Neb. 41; Robinson v Mathwick, 5 Id., 255; Williams v. Holmes, 2 Wis. 144; Doody v. Vaughn, 7 Neb. 31; Nichol v Patterson, 4 O., 200; Harper v. Albee, 10 Iowa 389; Fox v. Meacham, 6 Neb. 531.

Burke & Prout, contra, cited: Williams v. Lowe, 4 Neb. 396; Holmes v. Irwin, 17 Id., 99; Gould v. Loughran, 19 Id., 392; Horn v. Queen, 4 Id., 108; Hendrickson v. Hinckley, 17 HOW [U. S.], 443.

COBB, CH. J. MAXWELL, J., concurs. NORVAL, J., did not sit.

OPINION

COBB, CH. J.

I adopt the statement of the case from the brief of counsel for plaintiffs in error.

This was an action brought in the district court of Gage county, by plaintiffs against defendants, to enjoin the collection of a judgment rendered by H. G. Mechling, a justice of the peace of Gage county, in favor of the defendant John P. Glenn, and against plaintiffs, and to enjoin the levy of an execution issued on said judgment in the hands of the defendant Coburn, sheriff of Douglas county.

The petition and supplemental petition allege that on the 20th day of February, A. D. 1883, the plaintiffs commenced an action against the defendant John P. Glenn, constable, to recover possession of certain specific personal property, before H. G. Mechling, a justice of the peace; that thereafter it was stipulated by the parties to said action of plaintiffs v. Glenn that said cause should be continued by said justice until the case of George W. Lininger and Elizabeth Lininger v. N. Herron, sheriff of Gage county, Nebraska, then pending in the district court of said county, should be finally determined, and that said defendant H. G. Mechling, justice of the peace, render judgment in said cause in accordance with the judgment in the district court in said cause of plaintiffs v. N. Herron, sheriff; and thereupon said cause was continued upon said stipulation; that thereafter, on the 17th day of December, 1886, the defendant H. G. Mechling, justice of the peace, unlawfully and without jurisdiction, and without any notice to plaintiffs, rendered a pretended judgment in said cause in favor of the defendant John P. Glenn, constable, and against the plaintiffs George W. and Elizabeth Lininger, for the return of said property or for the value thereof, assessed at $ 164.25, and costs $ 12.15.

That the said cause of George W. Lininger and Elizabeth Lininger v. N. Herron, mentioned in said stipulation, was a case brought in the district court in replevin; that upon the trial of said action in the district court a verdict and judgment were rendered in favor of the defendant sheriff; that plaintiffs prosecuted a writ of error to the supreme court, and on November 25, 1885, the supreme court reversed said judgment of the district court and remanded said cause to said court for further proceedings; that upon the second trial of said cause, said district court again found the issues in said case in favor of the defendant; that thereafter said cause of G. W. and Elizabeth Lininger was again taken to the supreme court on error by plaintiffs, and the judgment of said district court again reversed and said cause remanded to said court for further proceedings, in which said district court said cause is still pending and undetermined.

That on or about the 12th day of August, A. D. 1887, a transcript of said pretended judgment rendered by said justice of the peace in the case of George W. and Elizabeth Lininger v. John P. Glenn was filed in the district court of Gage county and entered on the records of said court, and on August 15, 1887, an execution directed to the defendant Wm. Coburn, sheriff of Douglas county, Nebraska, was issued on the same; that said sheriff now has said execution and threatens to levy on the property of these plaintiffs to satisfy the same, etc.

That said defendant H. G. Mechling, justice of the peace, had no authority or jurisdiction to render a judgment in said cause of G. W. and Elizabeth Lininger v. John P. Glenn, and that said pretended judgment rendered by him is absolutely void and of no force and effect.

Prayer for temporary injunction restraining issue and levy of execution on said pretended judgment, and on final hearing that the injunction be made perpetual and that said pretended judgment may be declared null and void and of no force and effect, etc.

A transcript of the proceedings of the justice in the case of Lininger v. Glenn was attached to the petition as an exhibit.

On September 26, 1887, the court granted a temporary restraining order under their petition as prayed.

On October 27, 1887, the defendant Coburn, sheriff, filed a separate demurrer to this petition on the following grounds:

First--That the court had no jurisdiction to issue an order of injunction against this...