State ex rel. Reynolds v. Graves

• Decision Date: 22 October 1902
• Docket Number: 12,962
• Citation: 92 N.W. 144,66 Neb. 17
• Parties: STATE OF NEBRASKA, EX REL. WILLIAM REYNOLDS, v. GUY T. GRAVES, DISTRICT JUDGE
• Court: Nebraska Supreme Court

92 N.W. 144

66 Neb. 17

STATE OF NEBRASKA, EX REL. WILLIAM REYNOLDS, v. GUY T. GRAVES, DISTRICT JUDGE

No. 12,962

Supreme Court of Nebraska

October 22, 1902

ORIGINAL application for a writ of mandamus to compel the respondent, as district judge, to vacate an injunction. Writ allowed.

WRIT ALLOWED.

Hiram Chase, for relator.

Thomas L. Sloan, contra.

OPINION

SULLIVAN, C. J.

This action, brought for the purpose of compelling respondent, as judge of the eighth judicial district, to vacate two provisional injunctions allowed by him at the instance of Oran B. Phillips, grows out of a controversy over the right of possession of a quarter section of farming land in Thurston county. One eighty of the land is owned by Blanche R. Phillips, a minor, and the other eighty is part of the estate of Mary V. Phillips, deceased. On August 28, this year, Oran B. Phillips instituted two actions, one as guardian of Blanche R. Phillips and the other as administrator of the estate of Mary V. Phillips, to enjoin the relator from going upon the real estate in question and from interfering in any way with the crops growing thereon. The petitions in the two cases, except as to the property described and the averments of ownership and representative capacity, are substantially identical. One of them, omitting formal parts, is as follows:

"The plaintiff for cause of action against the defendant alleges:

"1. That the said plaintiff is the duly appointed, qualified and acting administrator of the estate of Mary V. Phillips deceased.

"2. That the said Mary V. Phillips, deceased, died in said Thurston county, Nebraska, seized of real estate in said Thurston county described as follows, to wit: South half of the northwest quarter of section 24, township 25 north range 7, east of the 6th P. M.

"3. That the plaintiff as administrator aforesaid is charged with the duty of protecting the said property of the said decedent against loss, damage and destruction and is entitled to the possession, use and benefit and control of said property for and on behalf of the estate of the said decedent.

"4. That the defendant William Reynolds has committed repeated acts of trespass upon the said land of your petitioner's decedent by going upon the said land and by using the same without any right whatever and is threatening to repeat said acts of trespass and to continue said use of said lands regardless of the rights of your petitioner to the possession, use and benefit of the said lands all to the great and irreparable injury of the estate of your petitioner's decedent and to your petitioner as administrator aforesaid. And the said defendant in utter disregard of your petitioner's rights and of the rights of the estate of your petitioner's decedent has threatened to remove from said land the crops of corn and wheat now being upon said land and being the property of the said estate of your petitioner's decedent and of your petitioner as administrator aforesaid, and to dispose of the same to his own use and benefit and to deprive your petitioner as administrator aforesaid of the said property and will unless restrained by order of this court remove, sell and dispose of said crops of wheat and corn and will continue his said trespasses upon the said land to the great and irreparable injury of the estate of your petitioner's decedent and of your petitioner as administrator aforesaid.

"5. That the defendant is insolvent and that a judgment for damage could not and can not be enforced against him and that the plaintiff has no adequate remedy at law. Wherefore your petitioner prays for a temporary order of injunction restraining the defendant, his servants and agents from trespassing upon the land above described and from removing or attempting to remove the crops of corn and wheat now being upon said land and from disposing of or in any manner interfering with said property or any part thereof, until the final hearing of the cause and on final hearing of the cause said injunction be made perpetual and for such other relief as is just and equitable."

Both petitions were presented to respondent as judge of the district court, and upon each of them he indorsed the following order: "Upon the reading the petition of the plaintiff, duly verified, and for good cause shown, it is ordered that an injunction be granted herein enjoining the defendant his servants and agents from trespassing upon the following described land, to wit: South half of the northwest quarter of section 24, township 25 north, range 7 east of the 6th P. M. in Thurston county, Nebraska, and from removing or attempting to remove the crops of corn and wheat now being upon said lands and from disposing of or in any manner interfering with said property or any part thereof, until the further order of the court upon the plaintiff executing and delivering to the clerk of this court an undertaking to the defendant in the sum of $ 500 with approved sureties, conditioned as required by law."

The undertakings required by these orders were furnished by Phillips and were approved by the clerk of the district court, who thereupon issued summonses notifying relator that the actions were pending and that injunctions had been allowed.

The case now before us was brought on the theory that the respondent exceeded his authority in granting the provisional injunctions and that this court should by writ of mandamus compel him to rescind his action. The submission of the case was somewhat irregular, but from the pleadings and admissions made by counsel at the trial it is, we think, entirely clear that relator was, and had been ever...