The question presented for determination is whether SDC 37.48 requires a summons to be issued and served for the court to acquire jurisdiction -to enjoin the nuisance described therein or if jurisdiction is obtained by the procedure followed by the plaintiff in the trial court. By SDC 37.4801 plаces maintained for the purposes of lewdness or prostitution are declared to be nuisances and shall be enjoined and abated as provided in that chapter.
SDC 37.4802 provides:
“Whenever a nuisance is kept, maintained, or exists, as defined -herein, the stаte’s attorney or any citizen of the c'ounty m-ay maintain a-n action in equity in the name of the state, upon the relation of such state’s attorney or citizen, perpetually to enjoin said nuisance * * *. In such action the Court, or a Judge in vacation, shall upon the presentation of a complaint alleging that the nuisance complained of exists, allow a temporary injunction without bond, if it shall be made to appear to the satisfaction of the Court or Judge by evidence in the form of affidаvits, depositions, oral testimony, or otherwise, as the plaintiff may elect that such nuisance exists, unless the Court or Judge, by *304 previous order, shall have directed the form and manner in which, it shall be presented. Three days notice in writing shall be given the defendant of thе hearing of the application, and if then continued at his instance, the temporary injunction shall be granted as a matter of course. When an injunction has been granted, it shall be binding on the defendant throughout the judicial circuit in which it was issued, and any violation of such injunction shall be a contempt as hereinafter provided.”
SDC 37.4803 provides:
“The action when brought shall be triable at the first term of Court after due and timely service of the notice has been given, and in such action evidence of the general reputatiоn of the place shall be admissible for the purpose of proving the existence of such nuisance. * * *”
Assuming to proceed thereunder on October 15, 1959, the state’s attorney of Lawrence County in the name of the state presented four verified сomplaints and applications for permanent injunctions to the circuit court of the county which, with annexed affidavits, particularly described the places claimed to be so used and in each case, facts sufficient to authorize the сourt to proceed under SDC 37.48. The complaints also requested temporary restraining orders and temporary injunctions after notice to the defendants of the hearing as provided by law. The circuit judge entered orders entitled “Order Setting Hearing on Aрplication for Temporary Injunction”, which after referring to the contents of the complaints and their prayers for permanent and temporary injunctions fixed a time for hearing on the complaints and applications for temporary injunсtions and commanded the defendants to appear and show cause for the court at the courtroom why preliminary injunctions should not issue. The court also issued orders temporarily restraining defendants from committing 'the nuisances complained of and notifying them to show cause why temporary injunctions *305 should not be granted in accordance with the aforementioned order. The state’s attorney also executed a “Notice of Application for Temporary Injunction” in each cаse addressed to the defendant giving notice that plaintiff would at the same time and place fixed in the court’s order, move the court for the “temporary injunction” referred to in the complaint; the time set for these hearings was six days thereafter аnd all these papers were served on the defendants that day. No summons was issued or served.
At the hearing defendants made a special appearance, objected to the jurisdiction of the court and moved to quash the pretended service of the papers for the reason that no civil action was commenced or pending against them as no summons had been issued or served on them. The circuit court being of the opinion that this was a special statutory remedy and that the nоtices of hearing gave the defendants-all the notice required by it, denied defendants’ motion to quash, upheld the court’s jurisdiction and issued temporary injunctions as prayed for against the defendants, copies of which were duly served on them by the sheriff.
Apрlications were made here for writs of certiorari on the claim that the circuit court had exceeded its jurisdiction. SDC 37.04. The writs were issued and the records are before us on the returns thereto. The parties are referred to as they appеared in 'the actions in the lower court. As the applications for certiorari were made on the affidavits of defendants’ attorney, plaintiff makes some point that they do not conform to SDC 37.0402, which states that “The application must be made on affidavit by the party * * * interested * * *” and cites Ludlam v. Broderick,
Bawdyhouses were public nuisances at common law.' State ex rel. Wilcox v. Ryder,
We now have two chapters that deal with nuisances under the title Judicial Remedies — SDC 37.47 and SDC 37.48. The first of these wаs formerly sections 2393-2404 of the Revised Code of 1903, and later became sections 2066-2077 of the 1919 Code. This court had occasion to consider these sections in Town of Britton v. Guy,
Minnesota’s act, (General Stаtutes 1913, §§ 8717-8725, now M.S.A. 617.33-617.41) inserts words in our SDC 37.4802 supra, as follows: “The defendants shall be served therein as in other actions, * * *” and after the three days notice in writing provision states “Each defendant so notified shall
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serve upon the complainant or his attorney a verified answer on or before the date fixed in the notice for the hearing, and such answer shall be filed with 'the clerk * * * but the court may allow additional time for so answering * * Commenting on this act in State v. Stroup,
Alabama has a similar statute providing that whenever the nuisance exists, any person “may bring an action in equity”, Code 1940, ‘Tit. 7, § 1093, for the issuance of a restraining order and temporary injunction, that a copy of the complaint together with a five-day notice of the time and place of hearing on the temporary injunction be served and the respondent file an answer on or before that date. In Ex parte O’Barr,
SDC 33.0803 in part provides: “Civil actions * * * shall be commеnced by the service of a summons * * It must be subscribed that the plaintiff or his attorney and defendant is given 30 days to serve a copy of his answer thereto. According to SDC 33.0202 an action is commenced when the summons is served on the defendant, or delivered to a sheriff with intent that it sh-a'll be served, followed by service thereof within 60 days.
Defendants’ counsel strenuously contends that there is no definite time within which complaint of plaintiff is to be answered, that the nuisance statutes fix no time and inquires whether it is to be within the three-day time set in thе notice, within thirty days provided by Supreme Court Rule 84, (SDC 33.0803) or at the first term of court after the notice. SDC 37.4803. As indicated above, Minnesota in its act has provided the time for answering; Alabama (Sec. 1099, Title 7, 1940 Code) and other states have done likewise; our act has nо such direction. It is our duty to construe statutes so as to- make them harmonious and workable. In Tabour Realty Co. v. Nelson,
In Smith v. Housing Authority of City of Daytona Beach,
It is our conclusion that when the legislature stated that the state’s attorney “may maintain аn action in equity” in SDC 37.4802, it meant a civil action as those words are used in SDC 33.0803. That section requires that civil actions in circuit court shall be commenced by the service of a summons and as no summons was issued or served with the papers in the circuit court action here under consideration that court had no jurisdiction to enter the “Order Granting Temporary Injunction” or “Writ of Temporary Injunction” dated October 23, 1959 and they are therefore annulled and vacated. From this it also follows the temporary restraining orders dated October 15, 1959 must be, and are, annulled and vacated.