Ludden v. State

• Citation: 31 Neb. 429,48 N.W. 61
• Parties: LUDDEN v. STATE.
• Decision Date: 24 February 1891
• Court: Supreme Court of Nebraska

31 Neb. 429

48 N.W. 61

LUDDEN

v.STATE.

Supreme Court of Nebraska.

Feb. 24, 1891.

Syllabus by the Court.

1. Proceedings for contempt, not committed in the presence of the court, are instituted by filing an information under oath, stating the facts constituting the alleged contempt. The charge should be stated in a positive manner, and it is not sufficient for the affiant to allege that he “is informed and believes” certain material facts.

2. Proof examined, and held not to sustain the finding of the court that the plaintiff in error had violated the order of the court.

Error to district court, Lancaster county; FIELD, Judge.Chas. O. Whedon, for plaintiff in error.

G. M. Lambertson, for the State.

MAXWELL, J.

On the 5th day of April, 1890, the St. Mark's Evangelical Lutheran Church of Lincoln, Neb., brought an action in the district court of Lancaster county against the Board of Church Extension of the General Synod of the Evangelical Lutheran Church in the United States, Luther L. Lipe, and Luther P. Ludden, in which the plaintiff claimed an interest in lot 6, block 91, in the city of Lincoln, etc. The prayer of the petition is “that a receiver may be appointed to take charge of said premises pending this litigation, and to receive and collect the rents thereof, and hold the same subject to the order of this court; that said defendants be restrained and enjoined from entering upon said premises, and removing said buildings, and from selling said premises or buildings, and from digging up the earth on said premises, and removing the same, and from erecting other buildings thereon, or in any wise interfering with said premises; that said deed from said defendant L. L. Lipe to said board be declared null and void, and that said Lipe and the said board be decreed to convey said premises to defendant, and defendant be decreed to be the owner thereof, subject to the said mortgages; that plaintiff have judgment for all rents collected as aforesaid, and for such other and further relief as equity may require.” The petition being duly verified, the judge entered the following order: “Upon application of the plaintiff for an injunction upon its petition duly verified, and it being necessary that the defendants should have notice of the application before an injunction is granted, it is therefore ordered that said cause be set for hearing on the 9th day of April, 1890, at 2 o'clock P. M., at the district court room in the city of Lincoln, Neb., and that the plaintiff be required forth with to notify the defendants of the time and place of said hearing, and that until the further order of the court a restraining order is allowed restraining the said defendants, the board of church extension and Luther P. Ludden, from entering upon the premises described in the petition, to-wit, lot 6, in block 91, in the city of Lincoln, Neb., and from removing the buildings now thereon, or digging up and removing earth therefrom, or erecting other buildings thereon, or from selling said lot or buildings, or in any wise interfering with said premises, upon the plaintiff executing an undertaking in the sum of $200, as required by law.” A copy of this order was served on the board of church extension and Ludden on the 7th day of April, 1890.

On the 10th day of April, M. L. Easterday filed an affidavit before Judge FIELD, as follows: “That on the 5th day of April, 1890, St. Mark's Evangelical Lutheran Church of Lincoln, Neb., filed a petition in this court against the Board of Church Extension of the General Synod of the Evangelical Lutheran Church in the United States, Luther P. Ludden, and Luther L. Lipe. The object of said action is to quiet the title to lot 6, in block 91, in the city of Lincoln, Neb., in said plaintiff, to cancel a deed given by said defendant Luther L. Lipe to said board of church extension, and to enjoin said defendants from selling said lot, or the buildings, or removing the same from said lot, or in any wise interfering with said property. That on said 5th day of April an order was issued out of this court signed by the Hon. A. W. FIELD, judge thereof, and directed to the said board of church extension and Luther L. Ludden, restraining the said defendants from selling said lot, or the buildings thereon, or removing said buildings, or in any wise interfering with the same, until the further order of the court. The hearing of said application for an injunction was fixed by the court for 2 o'clock P. M., Wednesday, April 19, 1890. That due service of said restraining order and notice of said application for an injunction was made upon said Luther P. Ludden and said board of church extension by the sheriff of said county, on the 5th day of April, 1890. That this affiant is one of the attorneys of record of said plaintiff. That he is one of the trustees of said plaintiff, and secretary of the board of trustees of plaintiff. That on or about the 17th day of December, 1890, this affiant, as such secretary, received a written notice that, at a special meeting of the board of church extension, defendant in said cause, held at York, Pa., on October 31, 1889, among other things, the following resolutions were adopted, viz.: ‘Resolved, 2. That Rev. L. P. Ludden, under appointment as missionary to Lincoln, Neb., from the board of home missions, be hereby appointed the authorized agent of the board of church extension in the interests of the property of the board, cor. M. &. 14th Sts., Lincoln, Neb. Resolved, 3. That the officers of St. Mark's Ev. Luth. Congregation of Lincoln, Neb., are hereby required to make settlement regarding the property corner M. & 14th streets, Lincoln, Neb., to Rev. L. P. Ludden, and hand over to him all books, papers, and moneys in their possession belonging to the board of church extension.’ That said notice was verified under oath by the secretary of said board, and purported to be a copy of the resolutions as adopted by said board. That affiant has had several conversations with said L. P. Ludden since said L. P. Ludden came to Lincoln, Neb., and said Ludden has always claimed to be the agent and representative of the said board of church extension as to said lot 6, in block 91, in the city of Lincoln. Said Ludden also informed affiant that he had been sent to build a church thereon, and that he (said Ludden) intended to build a church upon said lot. Affiant further says that, at the time said restraining order was issued and served, there were standing upon said lot two frame dwelling-houses, both of which were at said time occupied by tenants. That upon the morning of Tuesday, April 8, 1890, affiant visited said lot, and, found there at work,...