State ex rel. Horton v. Dickinson

Decision Date19 February 1902
Citation63 Neb. 869,89 N.W. 431
CourtNebraska Supreme Court
Syllabus by the Court.

1. If the district court mistakes or misconstrues the mandate of this court, its obedience may be enforced by mandamus, which is an appropriate remedy to make the mandate effective. State v. Omaha Nat. Bank, 82 N. W. 850, 60 Neb. 232;State v. Norris (Neb.) 85 N. W. 435.

2. A cause was remanded, with directions to proceed in a certain way. The trial court to which the mandate was directed, on the application of one of the parties in an independent action, issued a restraining order, enjoining the other party from proceeding further in the original cause in pursuance of the mandate until he had established his right to the subject-matter of litigation. Held, on an application for a writ of mandamus to the trial court, that the restraining order thus issued was, in legal contemplation, a disobedience of the mandate, and should be vacated, and the parties permitted to proceed in the main action according to the provisions of the mandate filed therein.

3. The district courts are courts of general legal and equitable jurisdiction, no forms of action are recognized, and the court has power to administer either legal or equitable relief, according as the pleadings warrant and the proof requires. Kirkwood v. Bank, 58 N. W. 1016, 40 Neb. 484, 24 L. R. A. 444, 42 Am. St. Rep. 683.

Application by the state, on the relation of Richard S. Horton, trustee, for a writ of mandamus to Charles T. Dickinson, judge. Writ granted.

Sullivan, C. J., dissenting.

Hamilton & Maxwell and R. S. Horton, for relator.

Smyth & Smith, for respondent.


The relator prays a writ of mandamus addressed to the respondent, as judge of the district court of Douglas county, directing him to vacate a restraining order allowed in a certain action wherein Hayden Bros. are plaintiffs and the relator defendant, restraining the defendant from further proceeding in a cause pending in said court, entitled, The State ex rel. Hayden et al. v. The Greater American Exposition et al.,” which had been remanded by this court for further proceedings in accordance with the mandate issued in said action, and also to require the respondent to proceed to a hearing in said last-mentioned action in pursuance of the terms of said mandate and the opinion of this court in the decision of the cause. The action mentioned has been twice brought to this court for its decision. Horton v. State, 60 Neb. 701, 84 N. W. 87, 88 N. W. 146. A full statement of the matters in litigation will be found in the two opinions delivered in the case just cited. One phase of the controversy relates to the right of the defendant, Horton, as trustee of the Greater American Exposition, which has been adjudged a bankrupt, to have restitution of certain moneys received by Hayden Bros. from the exposition company in pursuance of a judgment rendered on an application by them for a writ of mandamus, which judgment, by the decision of this court, was afterwards reversed. See opinion and judgment filed in the case first cited. When the cause was brought here the second time it was held that, where a party to a cause has obtained money or property under or by virtue of a judgment which is afterward reversed, the court has power to compel restitution by summary proceedings in that case, and that such restitution is a matter of right, and does not depend upon the merits of the controversy between the parties. The judgment of the trial court was reversed, and the cause remanded for further proceedings, not inconsistent with the opinion, under an order which had been issued therein to show cause why restitution of the moneys received by Hayden Bros. in pursuance of the judgment afterwards reversed should not be adjudged against them. See opinion and judgment last cited. Thereafter, and after filing in the trial court in said cause the mandate of this court to proceed with the case under the order to show cause why restitution should not be ordered in conformity with the court's views as expressed in the opinion, Hayden Bros. applied to the respondent for, and obtained, an order or writ restraining the relator from further proceeding in the cause, which had been remanded for further proceedings, “until he had first established in such action or proceedings as he may select, or this [the district] court direct, the want of right upon the part of these plaintiffs [Hayden Bros.] to the said $10,000 at the time the same was paid as aforesaid by the exposition to them, the said plaintiffs.” It is argued by the relator that the restraining order prohibits him from proceeding further in the cause remanded as directed by the mandate of this court, and is, in legal effect, a disobedience by the trial court of the mandate directed to it; that it sets at naught the judgment rendered in the action on appeal, and illegally deprives the relator of his rights to proceed to a final determination of the action in pursuance of the judgment and mandate duly rendered and issued in that behalf.

The right of the relator to the relief prayed in a proper case has already been decided in the case of State v. Omaha Nat. Bank, 60 Neb. 232, 82 N. W. 850, wherein it is held that, if the district court mistakes or misconstrues the mandate of this court, its obedience may be enforced by mandamus; and in State v. Norris (Neb.) 85 N. W. 435, 436, it is said by the present Chief Justice: “Mandamus is, of course, an appropriate remedy to make the mandate of the reviewing court effective,”--citing State v. Omaha Nat. Bank, 60 Neb. 232, 82 N. W. 850;Perkins v. Fourniquet, 14 How. 313, 14 L. Ed. 435; Ex parte Washington & G. R. Co., 140 U. S. 91, 11 Sup. Ct. 673, 35 L. Ed. 339;In re City Nat. Bank, 153 U. S. 246, 14 Sup. Ct. 804, 38 L. Ed. 705;Mason v. Mining Co., 153 U. S. 361, 14 Sup. Ct. 847, 38 L. Ed. 745;In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414. We cannot escape the conclusion that the restraining order effectually nullifies the mandate, which directed the district court to proceed to a final determination of the cause on the order issued to show cause why restitution should not be awarded before further action is taken in the proceedings on the merits under the issues as raised by the pleadings. It is very true the trial court has not directly proceeded in the action in disregard of the requirements of the mandate. A restraining order, however, was issued by it on the application of Hayden Bros., against whom the order to show cause was directed, preventing the relator from taking any further steps in the case, or applying to the court for any relief, or in any way invoking its jurisdiction in that action until, in an independent suit, the merits of the issues involved shall have been tried and determined adverse to the party who is being proceeded against under the order to show cause; that is, it has been decided that the question of restitution should first be inquired into and determined before proceeding to a trial of the cause on its merits, and by this collateral proceeding the attempt is made to compel the relator, in plain disregard of the legal consequences flowing from the mandate and opinion in the case, first to try the merits of the main controversy before he may invoke the aid of the court for a judgment of restitution, to which we have said he is first entitled, as a condition precedent to a trial and determination of the principal controversy. Although indirectly accomplished, and not at all doubting that the order was issued in good faith by the learned trial court, we can but regard it as, in legal contemplation, a disobedience of the mandate,--a misconstruction of its force and efficacy, which this court, in justice to itself, should correct, when the action taken is challenged by an appropriate proceeding. If the position for counsel for respondent is tenable, then the execution of every order, decree, and mandate issued out of the supreme court may be enjoined, its provisions disregarded and set at naught,--the inevitable consequences of which would be judicial chaos. It is said by counsel for relator that the temporary restraining order issued by the respondent was issued in an independent action of which the court had full jurisdiction, was based upon alleged rights not involved in the case in which the mandate had issued, and that on principle it is the same as an application to and ruling of a court of competent jurisdiction for a continuance, or an order of a court of equity to stay an action at law because if enforced it would work injustice, and that the court's ruling or judgment thereon cannot be controlled by mandamus, even though the effect be to prevent the enforcement of the mandate. And, to emphasize the proposition, it is suggested that if a district court of another county, in the exercise of its equity jurisdiction, should grant an injunction restraining the parties from proceeding in the original case under the mandate, it would not be contended that this court, upon an original application for a writ of mandamus, would command such district judge to set aside his restraining order and refuse to proceed further in the case; that such action would be the exercise of a judicial discretion that cannot be controlled by mandamus. We do not think the supposed case analogous to the one being considered; but, even if it were, we have no doubt of the authority of this court to repel the intrusion as unwarranted, and require the district court to which the mandate was directed, and which had acquired jurisdiction of the subject-matter, to proceed with the cause in disregard of the attempted interference by another court of co-ordinate jurisdiction. It is a rule of general acceptance that, in cases of concurrent jurisdiction, the leading principle to be applied is that the court which first acquires possession of the...

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3 cases
  • State ex rel. Horton v. Dickinson
    • United States
    • Nebraska Supreme Court
    • 19 Febrero 1902
  • State v. Hatch
    • United States
    • Washington Supreme Court
    • 12 Diciembre 1904
    ...78 P. 796 36 Wash. 164 STATE ex rel. JEFFERSON COUNTY v. HATCH, Judge, et al. Supreme Court of WashingtonDecember 12, 1904 ... 667, 19 So. 666; Koonce v. Doolittle (W. Va.) 37 ... S.E. 644; State v. Dickinson, 63 Neb. 869, 89 N.W ... 431; Amer., etc., Placer Co. v. Rich (Idaho) 69 P ... 280 ... ...
  • State v. Several Parcels of Land (Omaha Country Club)
    • United States
    • Nebraska Supreme Court
    • 10 Junio 1910
    ... ... one in question herein. Oliver v. Lansing, 51 Neb ... 818, 71 N.W. 735; State v. Dickinson, 63 Neb. 869, ... 89 N.W. 431; State [87 Neb. 87] v ... Thompson, 69 Neb. 157, 95 N.W. 47; State ... ...

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