State ex rel. Beck v. Associates Discount Corp.

Decision Date10 December 1955
Docket NumberNo. 33943,33943
Citation73 N.W.2d 673,161 Neb. 410
PartiesSTATE of Nebraska ex rel. Clarence S. BECK, Attorney General, And the Department of Banking of the State of Nebraska, Appellants, v. ASSOCIATES DISCOUNT CORPORATION, a Foreign Corporation, and Jack F. Kemnitz, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court.

1. This court has the inherent power in the exercise of its appellate jurisdiction in a proper case to award a temporary restraining order, to impound the subject of the litigation, and to appoint an interim receiver, for the purpose of protecting the subject matter of an appeal and preserving the statu quo of the parties in their relations thereto, where it is made to appear that the judgment finally rendered would otherwise be ineffectual and moot.

2. Such inherent powers will not be exercised by the court unless it is indispensable to the protection of the rights of the party asking it and the means are at hand to fully protect the rights of adverse parties.

3. Where it appears necessary, in the interests of justice, the court may, upon a proper showing, exercise such inherent powers ex parte or upon its own motion, to prevent irreparable damage to the litigants or the public.

4. Whether an order is a temporary restraining order or a temporary injunction is ordinarily determined by whether or not a further hearing was contemplated by the order. If a further hearing is contemplated it is a temporary restraining order. If further hearing is not contemplated it is a temporary injunction.

5. An order restraining a litigant until the right to a temporary injunction can be determined on the merits of an appeal is a temporary restraining order and not a temporary injunction.

6. A temporary restraining order is in aid only, and not a part of the main action. Its office is only to hold matters in statu quo for the time being, and until parties can be heard as to the propriety of issuing a temporary injunction.

Clarence S. Beck, Atty. Gen., Robert A. Nelson, Asst. Atty. Gen., for appellants.

Matthews, Kelley, Fitzgerald & Delehant, Omaha, Woods, Aitken & Aitken, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

The issue before the court arises on a motion of appellees for an order directing the clerk of this court to withhold approval of the bond of the receiver appointed by this court and a motion for an order dissolving a temporary restraining order entered by this court, both for the reason that the court was without power or authority to enter such orders and that they are therefore void and of no force and effect.

This action was commenced in the district court for Douglas County on July 7, 1955. The petition alleged in substance that the defendant, Associates Discount Corporation, is organized and existing under the laws of the State of Indiana and qualified to do business in this state. The suit was instituted by the Attorney General of Nebraska by the filing of a petition in the district court in which it is alleged that the defendants and each of them have failed to procure a license to conduct an installment loan business in this state and, with the intent of evading the usury laws of the state, have engaged in a device and subterfuge by means of which they have and are exacting usurious charges for the making of installment loans to purchasers of automobiles as specifically set forth in the petition. The prayer of the petition is for a decree finding that Associates Discount Corporation is operating an installment loan business in this state in violation of law with the intent of violating its usury laws; that, pending a hearing on the application for a temporary injunction and the appointment of a receiver, a restraining order be issued restraining the removal of the assets, books, and papers of the corporation beyond the jurisdiction of the court and from collecting or attempting to collect any of their unlawful and void loans; and that upon final hearing, an injunction be entered enjoining the defendants from engaging in the installment loan business in this state in the manner set forth or in any other manner which is violative of the laws of this state.

The trial court issued a temporary restraining order on the date the petition was filed, restraining the defendants from removing any of their records, files, papers, documents, notes, mortgages, and other assets of every kind and description pertaining to the business of defendants and further restraining the defendants from the making of loans at unlawful and usurious rates and from collecting or attempting to collect any such loans theretofore made. On July 15, 1955, upon a showing and finding that defendants were violating the restraining order, the trial court granted an order impounding the records and assets of the corporation and directed the sheriff of Douglas County to take possession thereof. The sheriff executed the order and took possession of the property. On July 18, 1955, defendants made application for the return of the books, records, and documents impounded, and for a dissolution of the temporary restraining order restraining defendants from collecting or attempting to collect the unlawful and void loans described in plaintiff's petition. The trial court without a formal hearing entered an order on July 19, 1955, dissolving the temporary restraining order, except the part thereof restraining the defendants from removing their records, files, papers, documents, notes, mortgages, and other evidences of indebtedness. The dissolution of the latter was conditioned upon the defendant corporation filing a good and a sufficient corporate surety bond in the penal sum of $1,000,000, conditioned that such books, records, and documents would not be removed from the jurisdiction of the court. Such a surety bond was given. Before any hearing was held on plaintiff's application for a temporary injunction and the appointment of a receiver, the trial court sustained a demurrer to plaintiff's amended petition and, upon plaintiff's election not to plead further, dismissed the action. Plaintiff has appealed.

It is the contention of the defendants that the injunction order entered by the trial court was a temporary injunction which was kept in force by plaintiff's appeal. We point out that no hearing was ever held on the application for a temporary injunction. The defendants were successful in having such a hearing continued from time to time until the trial court entered its dismissal of the action on the ground that plaintiff's amended petition did not state a cause of action. The order finally entered had the effect of temporarily restraining the removal of the records, files, papers, documents, notes, mortgages, and other evidences of indebtedness from the jurisdiction of the court, and nothing more. The temporary restraining order was dissolved and was not superseded and kept in force by plaintiff's appeal. The dissolution of a temporary restraining order cannot be superseded. State ex rel. Plattsmouth Telephone Co. v. Baker, 62 Neb. 840, 88 N.W. 124; Harbin v. Love, 119 Neb. 76, 227 N.W. 145. There is no order of the district court in effect restraining the defendants from removing any of its property from the jurisdiction of the court, or from collecting or attempting to collect its loans, notes, and mortgages, or from receiving any of the proceeds of the loans described in plaintiff's amended petition. The bond given, consequently, did not protect the state from any acts of the defendants after the dismissal of the action by the district court.

On December 3, 1955, the Attorney General made application to this court for a restraining order, temporarily restraining the defendants from collecting or attempting to collect the unlawful and void loans described in the amended petition, and for a further order impounding all the books, records, files, papers, notes, mortgages, and other documents pertaining to the loan business of the defendants pending the appeal. After an examination of the pleadings in the case and the orders theretofore made, and a consideration of the affidavits attached to the application, this court issued a temporary restraining order as prayed, and impounded the books, records, files, papers, notes, mortgages, and other documents pertaining to the business of the defendants, and appointed a receiver to take possession of the property impounded, with all authority generally imposed upon a receiver or as contained in the orders of this court, said appointment being conditioned upon the designated receiver posting a bond of...

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7 cases
  • State ex rel. Beck v. Associates Discount Corp., 33943
    • United States
    • Nebraska Supreme Court
    • May 25, 1956
    ...motion of defendants, showing by the parties, and hearing thereof, we refused to dissolve or set aside. State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73 N.W.2d 673. We will first discuss whether or not the trial court erred in sustaining defendants' motion to strike. Contra......
  • State ex rel. Beck v. Associates Discount Corp.
    • United States
    • Nebraska Supreme Court
    • April 3, 1959
    ...found in two of our opinions dealing with a former appeal of this cause. The first opinion is reported as State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73 N.W.2d 673. Therein we overruled the motion of defendants, appellees therein to vacate and dissolve our temporary restr......
  • Gaige M. v. Winterer
    • United States
    • Nebraska Supreme Court
    • April 23, 2015
    ...S.Ct. 2188.51 Id., 551 U.S. at 86, 127 S.Ct. 2188.52 Id.53 Id., 551 U.S. at 78, 127 S.Ct. 2188.54 See State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73 N.W.2d 673 (1955).55 See, e.g., Garcia v. Yonkers School Dist., 561 F.3d 97 (2d Cir.2009).56 See Sole v. Wyner, supra note ......
  • Pennfield Oil Co. v. Winstrom
    • United States
    • Nebraska Supreme Court
    • August 18, 2006
    ...and preserve the status quo of the parties until a determination of the case on the merits. See, State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73 N.W.2d 673 (1955); State v. Baker, 62 Neb. 840, 88 N.W. 124 (1901). Here, while the district court's concern was understandable,......
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