48 Neb. 327 | Neb. | 1896
This is an original application for a writ of mandamus to compel the respondent, as judge of the twelfth judicial district, to fix the amount of a supersedeas bond to be given by the relator in a cause lately determined in the district court of Buffalo county, wherein the relator was plaintiff and A. F. Lewis and Mary J. Lewis were defendants. The Lewises, on and prior to the 6th day of August, were engaged in the laundry business in the city of Kearney, and on said day they sold said business to the relator, and in the contract covenanted and agreed not to engage therein in said city for and during the ensuing five years. Subsequently the Lewises, in violation of the terms and stipulations of said contract, conducted a laundry business in the city of Kearney, and thereupon relator brought this action in the district court to enjoin them from further prosecuting the same. Application was made to the county judge of Buffalo county for a temporary injunction, who “ordered that said petition stand for hearing before the district court in and for said county October 21,1895, at 9 o’clock A. M., and that, in the meantime, the said defendants, and each of their employes, agents, or attorneys, be restrained from en
“Upon reading tbe foregoing amended petition of the plaintiff, duly verified, it is hereby ordered that an order of this court be issued by tbe clerk thereof, enjoining and restraining tbe defendants, and each of them, their agents, employes, and attorneys, as prayed in said amended petition; and it is further ordered that tbe bond of tbe plaintiff heretofore filed in said cause, and approved by tbe clerk of this court, stand in all respects as tbe bond securing tbe defendants from all damages which may occur to them by reason of tbe wrongful issuing of tbe order herein directed.
“Hector M. Sinclair,
“Judge of Twelfth Judicial District, Nebraslca.”
On March 21, 1896, application was made to tbe respondent, tbe present judge of tbe district court of Buffalo county, for a temporary injunction, which application was denied, and tbe action was dismissed on tbe ground that tbe respondent was of tbe opinion that tbe contract set out in tbe petition was in violation of section 1, chapter 91a, of tbe Compiled Statutes, relating to trusts. Eespondent having refused to fix tbe amount of a supersedeas bond, this proceeding was brought to compel him to do so.
It remains to be determined whether a temporary in-junctional order, or one that was valid, was ever allowed in the case of BoAvning v. Lewis. Clearly no temporary injunction was granted by the county judge. He merely issued an order restraining the defendants from conducting the laundry business until the application for a temporary injunction could be heard by the district court, or the judge thereof, and fixéd a time for such hearing. No such hearing Avas had at the time designated, and, therefore, the restraining order by its own limitation ceased to have any binding force and effect, and could not be revived and continued in force by the giving of a supersedeas bond.
It is argued that a county judge has no power to grant a restraining order. If this Avere true, we do not see how it could benefit the relator, since the order granted by the county judge does not by its terms purport to be a temporary order of injunction. If the contention of the relator is well founded, then the order granted by the county judge was void for want of authority to make it. But we are convinced, from a reading of the statute, that a county judge in a proper case may issue a restraining order pending a hearing of an application for a temporary injunction. By section 252 of the Code a temporary injunction may be granted before judgment by the
Writ denied.