Syllabus by the Court.
1. Where, in a contest of election, the district court declares the party contesting entitled to the office of councilman of a city, a supersedeas bond, although duly filed and approved, will not stay the judgment, there being no provision of statute for such suspension of judgment. State v. Meeker, 19 Neb. 444, 27 N. W. Rep. 427;Gandy v. State, 10 Neb. 249, 4 N. W. Rep. 1019.
2. Where, in a contest of election, the contestant has been adjudged entitled to the office contested, a court of equity has no authority to enjoin him from taking possession of the office, and an appeal from an order dissolving the temporary injunction will not lie.
Mandamus.
MAXWELL, J.
This is an application for a mandamus to compel the defendants to admit the relator to his seat as a member of the council of said city. It is alleged in the petition that “the city of Kearney, Nebraska, is a municipal corporation, organized as a city of the second class, of over 5,000 inhabitants, under the general laws of the state of Nebraska, and is divided into four wards, and has been so organized and divided for nearly two years last past. That the plaintiff is a resident, legal voter, and tax-payer of the Fourth ward in said city, duly qualified to hold office therein, and has been ever since its organization and division, as aforesaid. That at the annual election for councilmen held in said city on the 3d day of April, 1888, there were two councilmen to be elected in said Fourth ward,--one for one year, called the ‘short term,’ and one for two years, called the ‘long term;’ and that the plaintiff was elected as councilman from said Fourth ward for the said long term of two years. That at said election one John Barnd was also a candidate for the office of councilman of said Fourth ward for said long term, and claimed to be elected to said office. That on or about the 9th day of April, 1888, the plaintiff contested the election of said John Barnd to said office in the county court of said Buffalo county, and, upon the hearing of the said contest, the same was decided by said court in favor of this plaintiff. That thereupon said John Barnd appealed said cause to the district court of said county, and, upon the hearing thereof in said court, on the 18th day of February, 1889, a judgment was entered therein by said court containing, among other things, the words and figures following, to-wit: ‘It is therefore ordered and adjudged by the court that the said Wm. H. Hunt be, and he is hereby, declared the duly-elected councilman for the long term in the Fourth ward, in the said city of Kearney, Nebraska, and entitled to the possession of said office, and entitled to all the honors and emoluments thereof, from and after the 1st day of May, 1888, and to the end of said term.’ That no appeal has ever been taken from said judgment to this, or any other, court. That on the 20th day of September, 1889, an order of the judge of said district court was issued, directed to the sheriff of said Buffalo county, and commanding him to put the plaintiff in possession of his said office of councilman, which order was duly executed by said sheriff on the night of the 21st day of September, 1889, and the plaintiff was put in possession of his seat and office, but the said mayor and council have ever since refused to allow this plaintiff to take his seat, or to take any part in the proceedings of said council, and still refuse. That on the 21st day of October, 1889, the plaintiff made upon the defendants a demand in writing for his seat in said council, as a member thereof, on the grounds (1) that he was lawfully entitled to the possession of said office by virtue of a judgment and order of the district court in and for Buffalo county, Nebraska, from which judgment no appeal had ever been taken; (2) that they, nor any others, had the lawful right to prevent him from taking possession of, and performing the duties of, the office of councilman of said city, but his demand was refused, and the mayor and council still refuse to admit or recognize him as a member of said council. That he is lawfully and legally entitled to the possession of said office, and to a seat in said council, and to participate in the proceedings thereof, by virtue of his election thereto, as well as by the judgment of the district court of said Buffalo county, as herein set forth. That the said term of two years for which said plaintiff was elected councilman, as aforesaid, will expire on or about the first Tuesday in April, 1890, that being the time fixed by law for holding the annual election for councilmen in said city, and that, unless granted the relief herein asked, his said term of office will expire, and he be deprived of his rights to hold said office, and exercise the rights and privileges, and enjoy the honors, thereof, as he is lawfully entitled to do.”
To this petition the defendant filed an answer as follows: “They admit the first, second, fourth, and all of the fifth paragraphs of said petition, except that part of the fifth that pertains to the matter of the appeal from the judgment of the district court set out in said petition, and also admit the seventh paragraph in said petition, and deny each and every other allegation in said petition contained not hereinafter or hereinbefore admitted or denied. They allege that it is true that the said Hunt was a candidate for election against the said Barnd, as in said petition set out, but deny that said Hunt was elected as a member of said council, and state the truth to be that a certificate of election was issued to the said Barnd, as councilman from the Fourth ward; and that after said election the said Hunt filed a complaint contesting said election in the county court of said Buffalo county; and that, on hearing said contest, said judge decided the same to be a tie, whereupon lots were cast, and the said Hunt secured the favorable choice; and thereupon the said Barnd appealed said cause to the district court, in which court, on trial of said case, said contest was again declared to be a tie, whereupon lots were cast, resulting in a choice in favor of said Hunt, and that thereupon the Honorable LEWIS A. GROFF, Judge, trying said cause, entered a decree in words and figures following: ‘ * * * Now, on this day, this cause coming on to be heard, upon the pleadings and the...
