58 Neb. 472 | Neb. | 1899
This suit was brought in the court below on April 20, 1895, by Jacob Dillon to enjoin the defendant from operating its railway over and across the northwest quarter of section 16, township 2 north, of range 5 west, in Nuckolls county. A peremptory injunction was allowed on the final hearing as prayed, unless the defendant should, within a short time fixed by the court, pay to the plaintiff the amount of a certain judgment or final order, which
In October, 1886, plaintiff held, under a contract of purchase made by him with the state, the real estate already mentioned, and during said month defendant condemned for right of way purposes a portion of said tract and other lands belonging to Dillon. The amount of the award of the commissioners was deposited by the defendant with the county judge, and Dillon appealed from the award to the district court, where on a trial to a jury at the May, 1887, term of the court the following verdict was returned:
“We, the jury, duly impaneled and sworn in the above cause, do find on the issues joined for the plaintiff, and do assess his damages as follows: For 14.11 acres of land actually taken for railroad right of way in S. of sec. 8, T. 2, range 5 west, 6th P. M., $254. For damages to the balance of tract by reason of location of such railroad, $450. We find the value of the 3.62 acres actually taken by the railroad for right of way in the N. W. ¿ of sec. 16, T. 2, R. 5, $90.50; and we find'the damages to the balance of such tract by reason of the location of said railroad, $120. We find generally for the plaintiff, and so assess his damages at the sum of $914.50, if the court shall determine that the law allows the plaintiff to recover for the 3.62 acres on the N. W. ¿ of sec. 16, T. 2/R. 5; but if the court shall determine that the law will not allow the plaintiff to recover for the 3.62 acres aforesaid, then we find and assess the damages at the sum of $824.
“Wm. C. Ovilman, Foreman.”
A motion for a new trial was filed in said cause by Dillon, which was overruled, and the following judgment was rendered on said verdict: “It is thereupon, on this 5th day of May, 1887, considered and adjudged by the court that the court finds as a matter of law that as to
The nest subject for investigation is whether the judgment of May 5, 1887, has been legally modified or changed. It will be observed that the district court, more than two years after the entry of the judgment, pretended to modify the same by rendering a judgment against the defendant for the value of the same 3.62 acres of land already mentioned, which in the judgment of May 5 it had been determined there was no liability to Dillon by the railroad company. This action of the district court was taken and had on motion of Dillon filed after the term and nearly eighteen months, subsequent to the
Reversed and dismissed.