State ex rel. Beecher v. Wakeley

• Decision Date: 07 January 1890
• Citation: 44 N.W. 488,28 Neb. 431
• Parties: STATE EX REL. BEECHER v. WAKELEY, JUDGE.
• Court: Nebraska Supreme Court

28 Neb. 431

44 N.W. 488

STATE EX REL. BEECHER

v.WAKELEY, JUDGE.

Supreme Court of Nebraska.

Jan. 7, 1890.

Syllabus by the Court.

Chapter 27 of the Session Laws of 1889, providing for the execution of a supersedeas bond upon the dissolution of a temporary injunction, does not authorize the execution of such bond where, pending an application for the granting of a temporary order of injunction, a restraining order has been issued to the defendant for the purpose of restraining him from a commission of the act complained of until the application for the temporary injunction can be heard; and a writ of mandamus will not lie to a judge of the district court, requiring him to fix the amount of such bond to be filed by a plaintiff, where a temporary order of injunction is refused, notwithstanding a restraining order may have been formerly granted.

Original proceeding in mandamus.

Wm. E. Healey and Thos. D. Crane, for relator.

John L. Webster, for respondent.

REESE, C. J.

This is an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus to the defendant, one of the judges of the district court of Douglas county, requiring him to fix the amount in which a supersedeas bond may be executed by the relator, for the purpose of securing a review of the decision of said judge upon a motion to discharge a restraining order previously made by him in an action then pending in said court in which the relator was plaintiff, and by which she sought an injunction to restrain the officers and agents of the city of Omaha, the Omaha Street-Railway Company, the Omaha Motor Railway Company, and Hugh Murphy from changing the grade of a street upon which relator's property abutted. It is shown by the record that the petition filed in that case was presented to the defendant with a request for an order granting a temporary injunction, when the following indorsement was made thereon by defendant: “Upon reading the foregoing petition and verification thereof, it is ordered that the hearing of a temporary injunction be set for the 30th day of October, 1889, at ten o'clock A. M., at the court-room of the district court of said Douglas county, in the court-house thereof, after two days' notice of the same to the defendants; and that in the mean time, and until the further order of this court, a restraining order be granted, as prayed in said petition, upon the plaintiffs executing an undertaking in the sum of $500, as required by law. Dated Oct. 26, 1889. BY THE COURT. ELEAZER WAKELEY, Judge of the District Court of the said Douglas County.” The undertaking was executed and filed as required by the order above quoted. On the 4th day of November, 1889, the city of Omaha filed its answer, and on the 25th day of the same month the plaintiff filed her reply thereto. On the 11th day of November the cause came on for hearing, when the following order was made: “On this day came on to be determined the application of the plaintiff for a temporary injunction, which at a former day of this term had been heard pursuant to the order of the court made on October 26, 1889, and taken under advisement, and, the court being now fully advised in the premises, it is ordered that the said application be, and hereby is, overruled and denied, to which the plaintiff excepts; and that the restraining order granted pending the said application be, and hereby is, vacated, to which the plaintiff excepts. And thereupon came on to be heard the motion of the plaintiff that the court fix and determine the amount of the supersedeas undertaking to be given herein, which motion is overruled, to which plaintiff excepts.”

It is contended by plaintiff that the duty of fixing the amount of the supersedeas bond is imposed by chapter 27 of the Session Laws of 1889, the first section of which is as follows: “Section 1. That in case of the dissolution or modification by any court, or any judge at chambers, of any temporary order of injunction which has been or may hereafter be granted, the court or judge so dissolving or modifying said order of injunction shall at the same time fix a reasonable sum as the amount of the supersedeas bond which the person or persons applying for said injunction may give, and prevent the doing of the act or acts the commission of which was or may be sought to be restrained by the injunction so dissolved or modified.” Section 3 of the same chapter is as follows: “Sec. 3. Such supersedeas bond shall stay the doing of the act or acts sought to be restrained by the suit, and continue such injunction in force until the case is heard and finally determined by the judgment, decree, or final order of the court.” Sections 253 and 254 of the Civil Code, in the chapter providing for injunctions, are as follows: “If the court or judge deem it proper that the defendant, or any party to the suit, shall be heard before granting the injunction, it...