63 Neb. 189 | Neb. | 1901
In the year 1895, LeRoy Finch and Freeman 0. Finch, the defendants in error, were tenants in possession of a farm in Lancaster county, Nebraska, owned by the plaintiffs in error, Cunningham and Ledwith. These owners brought an action in the district court of Lancaster county, alleging in their petition that the tenants were committing waste upon the farm by cutting shade and ornamental trees, which, together with fence posts and other improvements upon the premises, they used for fuel; that they were insolvent and that plaintiffs would suffer great injury if defendants were not restrained from such acts. The plaintiffs prayed for a temporary injunction restraining the defendants from committing waste, and that upon the final hearing the right to the property might be found in the plaintiffs, and that plaintiffs recover from defendants $200 damage for the injury sustained. A temporary injunction was issued in said cause, the plaintiffs therein executing a bond in the sum of $100. A motion to dissolve this tem■porary injunction, made by the defendants, was overruled by the court, and, upon a final trial of the action, judgment was entered finding the defendants entitled to most of the property in controversy, and allowing them to remove certain described property to which they had established title. After the final disposition of that case, the present action was commenced in the district court of Lancaster county,in which LeRoy Finch and Freeman C. Finch, the defendants in the former suit, sought to recover from the plaintiffs in that case and the sureties upon the injunction bond their damages sustained in consequence of the issuing of the injunction. The trial resulted in a judgment for the plaintiffs below in the sum of $75.30, and from this judgment the plaintiffs in error have brought the case to this court for review.
Numerous errors are assigned as having occurred upon the trial and in giving and refusing instructions to the jury, but, as we view the case, it will be unnecessary to
W'e recommend that tbe judgment of tbe district court be reversed, and tbe case remanded for a new trial.
By tbe Court: For tbe reasons stated in tbe foregoing opinion, tbe judgment of tbe district court is reversed and tbe case remanded for a new trial.
Reversed and remanded.