#### State, ex rel. James Q. Keefe, relator, v. Guy T. Graves, Judge, respondent.

Filed September 16, 1908.

No. 15,722.

1. Injunction: Vacating. On the 18th day of May, 1908, the defendant, the judge of the district court, granted a temporary injunction enjoining a defendant from entering upon and interfering with the possession of the plaintiff in the action, of a certain tract of land. On the 23 d day of the same month, and while the injunction was in full force, he granted a counter injunction restraining the plaintiff from interfering with the possession óf defendant. On the 1st day of June he modified the first injunction to the extent of permitting the 'defendant in the action to enter upon the laiid and cultivate and care- for the growing crops planted hy him. On- the 4th day of June the order allowing the first injunction was vacated and set aside, but a supersedeas was granted and the required undertaking was given. ' *Held,*That the'second injunction, being in contravention of the one then in force, was improvidently issued, and should be vacated.

2. -: Supersedeas. The first order issued, set out in the opinion, *held*to be a temporary order of injunction, and not a mere restraining order, and one which could be continued in force, after .dissolution, by a supersedeas.

3. -: Restraining Order. *“A*restraining order is in aid only, and not a part of the. main action. Its office is only to hold matters *in statu quo*for the time being, and until parties can - be heard as to the propriety of issuing a temporary injunction.” *Trester v. Pike,*-60 Neb. 510.

*2834. -: Dissolution: Supersedeas. An injunctional order which does not contemplate a hearing as to whether a temporary injunction shall be allowed is of itself a temporary injunction, and must be so treated. An order dissolving such injunction may he superseded.

Original application for writ of mandamus to compel respondent, as judge of the district court, to vacate an order of injunction.

*Writ allowed.*

*Herman Frees*and *Hiram Chase,*for relator.

*Curtis L. Day, contra.*

Reese, J.

This is an application to this court in the exercise of its original jurisdiction for a mandamus to the defendant, the judge of the district court of the Eighth judicial district of this state. The facts, as shown by the pleadings and proofs, may be briefly stated to be that the relator, James Q. Keefe, is the holder of the title to the southeast quarter of the southeast quarter of section 25, in township 25 north, of range 6 east, in Thurston county; that he became the owner of the land by proper conveyances after the first day of January, 1908; that prior and up to about the 10th day of January the property was owned by George Lieb, an Omaha Indian, he having received a patent therefor on the 19th day of December, 1907, but by later conveyances relator became the owner; that for several years Silas Lieb had cultivated the land as a tenant, and during the month of September, 1907, and while George Lieb was the owner, he leased the land from George for the year 1908, paying a portion of the rent, and prepared the ground for the crops of 1908 by plowing it, and in the spring of 1908 began the cultivation by putting it in corn, and was proceeding to cultivate the crops thus planted. On the 18th day of May, 1908, Keefe commenced an action in the district court for Thurston county against Silas Lieb, the purpose of which was to *284enjoin him from entering upon the land or in any manner interfering or molesting Keefe in the quiet enjoyment of the possession of the premises. Ai plication was made to defendant for the allowance of an injunction, which was granted, and an order in the following form issued: “Upon reading the petition of plaintiff, duly verified, and for good cause shown, a temporary restraining order is granted herein restraining and enjoining the defendant, his attorneys, agents, servants and employees from entering upon the southeast quarter of the southeast quarter (S. E. ;} of S. E. J) of section twenty-five (25), of township twenty-five (25) north, and of range six (6) east of the 6th P. M., in Thurston county, Nebraska, and from in any manner interfering with or molesting the plaintiff in the quiet enjoyment of the possession of said premises until further order of this court, upon the plaintiff executing and delivering to the clerk of the court an undertaking to the defendant in the sum of $200 with approved sureties conditioned as required by law.” The required undertaking was given and a summons was issued in the usual form, upon which was indorsed, “Injunction allowed,” by the clerk. On the 23d of May, Silas Lieb, the defendant in the action, filed his cross-petition, in Avhich he set up the facts of his tenancy, as above stated, including the lease from George Lieb, the preparation of the land for the crop of 1908 and the planting of the crop, and prayed for an order of injunction against Keefe restraining him from entering upon the land or disturbing the crop growing thereon, and from molesting the cross-petitioner in the quiet enjoyment of the possession of the property. The cross-petition also alleged that the plaintiff Keefe was a nonresident of the state; that, if he had become the owner of- the land, his title and oAvnership Avas subject to the rights of the cross-petitioner as tenant in possession, and he was charged with notice of such rights; that one William A. Mutz was the agent or tenant of the plaintiff, or by some other claim, and, with the plaintiff, was threatening to enter upon the land and destroy the crops growing *285thereon, and that he was a necessary party to the litigation.

We find nothing to show that any notice was given to either party of the application for these injunctions. Why defendant did not take this precaution in either case we need not now inquire. On the same day of the. filing of the cross-petition a temporary order of injunction was granted against the plaintiff Keefe, and Mutz, enjoining them from entering upon the land and destroying the growing crops by planting other crops or otherwise until the further order of the court, upon the execution of an undertaking in the sum of $100. On the 25th day of May, Lieb, the defendant in the action, served notice on the plaintiff Keefe of an application to be made on May 80, to the defendant herein, to “yacate the temporary order of injunction heretofore allowed in this case,” upon the ground of the insufficiency of the petition upon which the same was allowed, that the court had no jurisdiction to issue the order, and that it was an attempt to deprive defendant of the possession of his.property by the injunction in violation of law. On the 4th day of June the following order was signed by defendant: “Now, on this 4th day of June, 1908, at chambers, this cause came on for hearing upon the motion of the defendant, heretofore filed, to vacate the temporary restraining order heretofore granted in this case, and was submitted to the court upon the petition, affidavits, and the testimony of sundry witnesses offered in evidence, and the argument of counsel, plaintiff appearing by his attorneys, H. Chase, Esq., and H. Freese, Esq., and the defendant by his attorneys, C. L. Day, Esq., and P. W. Cain, Esq., and the court, being fully advised in the premises, doth find: That the defendant, Silas Lieb, at and long-prior to the commencement of this action was and now is in possession of the premises described in plaintiff’s petition, had plowed the same and planted it to corn, and had a growing crop upon said premises at the time of the bringing of this action, and the court finds it is without *286jurisdiction to grant an injunction herein. On consideration whereof, it is ordered that the said motion he and the same is hereby sustained, and the injunction heretofore granted is hereby vacated, set aside and dissolved. To all of which findings and order plaintiff duly excepts. Supersedeas bond fixed at three hundred dollars. To the order fixing supersedeas bond, defendant excepts.” A supersedeas bond was given which was approved by the clerk. It is shown that the defendant herein, at the time of entering the order last above copied, informed the defendant in that suit that he could safely reenter the land and cultivate the crops, so far as any danger from contempt proceedings might be concerned. By this application for a mandamus, the relator, who was plaintiff in the injunction proceedings, seeks an order to the defendant requiring him to abide by the injunction first issued, and to vacate the second order of injunction and vacate the order modifying relator’s injunction.

The defendant in his answer and return contends that the first order of injunction was only a restraining order and was never intended as or for a temporary injunction. This contention is fully met and disposed of in *State v. Baker,*62 Neb. 840, where it is held that the question must be determined by a construction of the character, scope and effect of the writ. The order issued fixed upon no time for further hearing, as required by section 253 of the code in a restraining order, but to all intents and purposes was a temporary injunction. In the case above cited it is said: “The order does not by its terms indicate or contemplate that a further hearing on the application was to be had before the application was finally acted upon; and herein, in our judgment, lies the chief distinguishing characteristics between a 'temporary order of injunction’ and a mere 'restraining order’ until the application is fully heard. There is nothing to indicate that he deemed it proper that the defendants should be heard before granting the injunction; no. order or direction that any notice be given to such party to attend for the pur*287pose of hearing the application; no time or place mentioned for such hearing; nor does the wording of the order itself indicate that it was to operate as a restraint on the defendants ‘in the meantime,’ and only until such hearing should he had.” A restraining order continues in force only until such fixed time as is ordered for the hearing, unless extended by further order to some later date. It is allowed only for the purpose of maintaining the status until notice may be given and a hearing had upon the application for the temporary order. With the exception of the erasure of the words “it is ordered that,” and the interlineation of the words “a temporary restraining order, of,” so as to make it read, “for good cause shown a temporary restraining order of injunction is granted herein restraining the defendants,” etc., the order possesses all the elements necessary to a temporary injunction. That such was considered as the case is shown by all the actions of defendant and the attorneys for the parties to the suit. Notice was given the plaintiff’s counsel that on a day named the attorneys for the defendant would apply to the judge of the district court at the courthouse “to vacate the temporary order of injunction heretofore allowed in this case,” etc., and in the order made by the judge at chambers it is ordered that the motion be sustained, “and the injunction heretofore granted is hereby vacated, set aside and dissolved,” and the supersedeas bond was fixed at $300, and on the same day the bond was given and approved. It would be a serious reflection upon the intelligence of defendant to say that he did not know that the dissolution of a restraining order, or rather the refusal to continue it, could not be superseded. We must therefore conclude that his action in granting the supersedeas was taken with knowledge of the effect of the first order made. As we have seen, while the temporary order of injunction, enjoining the then defendant Lieb from entering upon the land was in force, another injunction was issued upon behalf of the defendant Lieb, enjoining the then plaintiff Keefe from doing *288the same thing, thus effectually preventing the cultivation of the crop then growing. If it could have any effect, it would be to nullify the former order, but as that order could not be modified in that way we cannot see but that the second injunction was improvidently and, to say the least, irregularly issued. We can see no other solution of this question, and the order will have to be that that injunction must be vacated; The writ will therefore issue for that purpose.

It appears that on the 1st day of June the original injunction was modified by providing that “the defendant be permitted to enter upon the premises and cultivate the crops which have been planted by him upon said lands, and to give same all proper attention, and prevent the loss of the crops so planted by him/'* etc. This order prevents the loss of the crops, and will leave the question of ownership for adjudication upon the trial of the principal cause, which should be disposed of at an early date. It is contended that the decision in the case of *State v. Graves,*66 Neb. 17, is decisive of this case, and that the first injunction issued was void. Were it not for the modification of the order of injunction above referred to, there might be substantial ground for holding that case to be in point here, but in that case the legal effect of the order of injunction was the practical transfer of property in possession of the defendant to the possession of the plaintiff, thus depriving the defendant of crops which he had planted. As modified, the injunction in this case cannot have that effect. The defendant in the suit is permitted to properly till and care for the crops, thus preserving them, but in no sense adjudicating the rights of the parties.

It is argued that the proof shows beyond question that, when plaintiff Keefe purchased the land, Lieb had previously leased it of the then owner, paid the rent for the year 1908, had continued his previous possession, and plowed the ground preparatory to the 1908 crop; that in the spring of that year he had planted the land in *289corn, and was cultivating the same at the time of the commencement of the suit and issuance of the injunction, and that Keefe had at least constructive, if not actual, notice of Lieb’s rights. Such would seem to be the case, and, if so, it must be conceded that Keefe cannot maintain his action. But that question must be adjudicated in the forum to which it belongs. The injunction was judicially, if not judiciously, issued, and, as we are not now exercising appellate jurisdiction, we cannot interfere with that proceeding. If insisted upon by Keefe, it must take its course in the district court.

The conclusion is that the order of injunction in favor of Lieb and against Keefe and Mutz, issued May 23, 1908, was improvidently and illegally issued, and a peremptory order of mandamus, commanding defendant to vacate the same, is granted.

Wbit allowed.