State ex rel. Beach v. Fields

Nebraska Supreme Court

State ex rel. Beach v. Fields

87 N.W. 318, 62 Neb. 520, 1901 Neb. LEXIS 235

CourtNebraska Supreme Court

DecidedSeptember 18, 1901

DocketNo. 12,001

StatusPublished

This text of 87 N.W. 318 (State ex rel. Beach v. Fields) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Beach v. Fields, 87 N.W. 318, 62 Neb. 520, 1901 Neb. LEXIS 235 (Neb. 1901).

Pincite

Opinion

Nor val, O. J.

This is an application by Elli A. Beach for a peremptory mandamus to compel the respondent, the county judge of Antelope county, to issue a writ, of restitution on a judgment recovered by relator in an action of forcible entry and detainer. The facts briefly stated, are these: Relator commenced an action of forcible entry' and detention before the respondent, as county judge of Antelope county, against one James Brown, to-recover possession of certain real estate. Subsequently, in April, 1899, relator recovered judgment of restitution of the premises, and Brown appealed to the district court, but prosecuted no proceeding in error. Respondent, on demand, refused to issue a writ of restitution, and this proceeding was thereupon brought.

.The case is free from difficulty. The statute authorizing an appeal in that kind of a case was unconstitutional and the attempted appeal was abortive and conferred no jurisdiction of the cause upon the district court. Armstrong v. Mayer, 60 Nebr., 423. The judgment of the county court was not superseded by the giving of the appeal bond. Supra. Relator was entitled to a writ of restitution, and mandamus is the appropriate remedy to require respondent to issue the same. High, Extraordinary Legal Remedies, sec. 242.

Writ allowed.

Sullivan, J., absent, not voting.

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Nor val, O. J.

This is an application by Elli A. Beach for a peremptory mandamus to compel the respondent, the county judge of Antelope county, to issue a writ, of restitution on a judgment recovered by relator in an action of forcible entry and detainer. The facts briefly stated, are these: Relator commenced an action of forcible entry' and detention before the respondent, as county judge of Antelope county, against one James Brown, to-recover possession of certain real estate. Subsequently, in April, 1899, relator recovered judgment of restitution of the premises, and Brown appealed to the district court, but prosecuted no proceeding in error. Respondent, on demand, refused to issue a writ of restitution, and this proceeding was thereupon brought.

.The case is free from difficulty. The statute authorizing an appeal in that kind of a case was unconstitutional and the attempted appeal was abortive and conferred no jurisdiction of the cause upon the district court. Armstrong v. Mayer, 60 Nebr., 423. The judgment of the county court was not superseded by the giving of the appeal bond. Supra. Relator was entitled to a writ of restitution, and mandamus is the appropriate remedy to require respondent to issue the same. High, Extraordinary Legal Remedies, sec. 242.

Writ allowed.

Sullivan, J., absent, not voting.

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Bluebook (online)

87 N.W. 318, 62 Neb. 520, 1901 Neb. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-beach-v-fields-neb-1901.