Pollock v. Whipple

• Decision Date: 08 December 1898
• Docket Number: 8516
• Citation: 77 N.W. 355,57 Neb. 82
• Parties: WILLIAM A. POLLOCK ET AL. v. DAVID W. WHIPPLE
• Court: Nebraska Supreme Court

77 N.W. 355

57 Neb. 82

WILLIAM A. POLLOCK ET AL. v. DAVID W. WHIPPLE

No. 8516

Supreme Court of Nebraska

December 8, 1898

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

REVERSED AND REMANDED.

Miller & Ready and Barnes & Tyler, for plaintiffs in error.

John Bridenbaugh, contra.

OPINION

RYAN C.

This was an action in the district court of Cedar county for the recovery of damages on an injunction bond. The differences between the chief litigants in this case seem to have appeared in an action of forcible entry and detainer, in which there was a judgment in favor of Whipple, the plaintiff. The defendant Pollock thereupon, on June 8, 1889 tendered an appeal bond in the penal sum of $ 50, which was approved by the justice of the peace who had rendered the judgment sought to be appealed from. On the day following the approval of this bond there was by said justice of the peace indorsed on the bond this language:

"This approval is hereby canceled and notice given defendant this 9th day of June, 1889.

"W J. DE GARMO,

"Justice of the Peace.

"After examination of the responsibility of the sureties in this bond, I find that they are not good; therefore insufficient. I hereby refuse to approve said sureties and the amount fixed in said bond; and it is considered by me that $ 500 would be a reasonable amount on appeal of this cause, with two good responsible sureties. Dated this 9th day of June, 1889. W. J. DE GARMO,

"Justice of the Peace."

The appellant in the forcible entry and detainer case, on the theory that these last two indorsements of the justice of the peace in no way impaired Pollock's rights upon an appeal perfected, obtained an injunction in an action brought in the said district court, whereby the appellee in the forcible entry and detainer suit was prevented from interfering with the rights which appellant claimed existed in his favor by virtue of his appeal bond having been duly approved. We are not informed by the record in this case what were the conditions of, or who were sureties on, the original injunction bond. Soon after the injunction action was brought, as we learn from the averments of the petition herein, the defendant in the injunction suit moved to dissolve said injunction, and in case the same was not dissolved moved the court for further, better, and additional security; and this motion was not sustained as to dissolving said injunction, but was sustained as to requiring the plaintiff in the injunction suit to furnish additional security. A bond was furnished in compliance with the order of the court thus described in the petition herein, and it is upon this bond that this action was begun. It is insisted by the plaintiff in error in this case that the injunction was continued in force only so long as was necessary to protect the rights of Pollock as an appellant in the forcible entry and detainer case and that, when that case was decided, the injunction suit was, with the assent of all parties, dismissed. If there had been shown a voluntary dismissal without objection, our task would be much simpler than we find it in view of the following journal entry in the injunction case: "In the district court of Cedar county Nebraska. William A. Pollock v. David W. Whipple and Samuel Gust. On this 15th day of March, 1892, this cause came on to be heard upon renewal of the motion of the defendants to vacate and set aside the injunction heretofore granted in this case, and was submitted to the court upon the petition and affidavits of the parties,...