7 Indian Terr. 35 | Ct. App. Ind. Terr. | 1906
Lead Opinion
This is an appeal from a decree sustaining a demurrer to a complaint for an injunction, dissolving a temporary restraining order, dismissing the complaint for want of equity and the assessment of damages because of the said restraining order,
The amended complaint alleges that said appellants recovered a judgment against said Sherrell, in the United States Commissioner’s Court January 7, 1902, but the record is silent as to the nature or amount of same. No appeal was taken on day judgment was rendered, and no notice was given appellants of the taking of an appeal. Atranscriptof therecordof said cause before the commissioner was filed in the United States District Court March 22, 1902, and April 22, 1902)' being the second day of the April term of said court, the appellants not appearing, a judgment by default was rendered against them in favor of said Sherrell. Yet the'amount and character of same nowhere appears in the record. June 9, 1902, execution issued upon said judgment, and on the same date the said Hackett as marshal
There- is no merit in the second assignment of error. It appears that the court at its May term, 1904, sustained the demurrer to the complaint, dissolving the restraining order, and finding and decreeing the damages to be $195. By mis-prison of the clerk thé same was not entered of record. At the following January term of court, on motion' of defendant, being-appellee Sherrell, the judgment was ordered entered nunc pro tunc which was done accordingly. This is authorized by the rules and practice of the common law-, if not by the statute. 12 Am. & Eng. Enel. Law (1st Ed.) 80, and authorities cited.
The last assignment of error must be sustained. Carter’s Tnd. Ter. St. 1899 prescribe the procedure in cases of this kind:
Sec. 2522. Upon the dissolution, in whole or in part, of an injunction to stay proceedings upon a judgment or final order, the damages shall be assessed by the court, which may hear the evidence and decide in a summary way, or may, at its discretion, cause a jury to be empanelled to find the damages.
“Sec. 2523. Where money is enjoined, the damages may be any rate per cent, on the amount released by 'the dissolution, which in the discretion of the court may be proper, not exceeding-ten per cent.”
The Supreme Court of Arkansas, from which state this statute was adopted, in Moore vs Granger 30 Ark. 574, says: “Sections
Rehearing
On Petition for Rehearing.
The petition for rehearing has been heard with supporting oral argument. It fails to point out wherein the court has misapprehended the record or the law relating to the point raised. No new point has been made nor any additional authority presented. The question remains: Is the amended complaint sufficient in statement to authorize. the relief prayed, to annul the judgment of the District Court, rendered upon the appeal of appellee from the judgment of the Commissioner's Court, which was in favor of appellants, and grant, a perpetual injunction against its enforcement? The ground alleged for the granting of this relief is that the appeal
The statute provides that, when an appeal is not taken upon the day the judgment is rendered in the Commissioner’s Court, the appellant is required to give notice, in writing, .of such appeal at least 10 days before the term at which the appeal is to be heard, and if appellee does not reside in the district, and has no attorney therein upon whom service can be made, that the notice of appeal shall be lodged in the office of the commissioner within' said 10 days.
The complaint should specifically negative each of said modes of notice. It fails to allege that they were not nonresidents of the district, and had not an attorney therein upon whom service of notice could be made. In the absence of such averment, the court must conclusively presume that the statute was complied with by the commissioner in sending up the transcript to the District Court, and that the said transcript advised that court that such notice had been lodged with the commissioner. It is a presumption of law that all officials perform their duties. Therefore Jhe demurrer was properly sustained to the amended complaint, the same dismissed for want of equity, and the restraining order dissolved,
The petition for rehearing is denied.