
    State of Nebraska, ex rel. Elli A. Beach, v. James S. Fields.
    Filed September 18, 1901.
    No. 12,001.
    An Appeal Where None Lies Is Null, and Mandamus Will Lie to Enforce Appellee’s Right. Where a defendant in an action of forcible entry and detainer had appealed from a judgment rendered against him therein, for restitution of the premises in which no appeal lies, the entire proceedings are null and void, and mandamus may be invoked to require the issuance of a writ of restitution.
    Original application for a peremptory writ of mandamus to compel the respondent to issue a writ of restitution on a judgment recovered in an action of forcible entry and detainer.
    
      Writ allowed.
    
    
      Jackson & Williams, for relator.
    
      E. B. Kilbourn and W. V. Allen, contra.
    
   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 The judgment of the county court was not superseded by the giving of the appeal bond.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.  