*1 There was no error the demurrer sustaining to the first and fifth causes but there was action, to the sec- ond, third and fourth causes.
The judgment is reversed and the district court di- proceed according rected to to this opinion.
Mr. dissents Campbell conclusion city to the tax in subject before the question act 1927. 12,046.
No. People. Gaskins Decided November 1928. *2 Mr. Kenneth W. Philip
Mr. Robinson, Cise, Van plaintiff in error. Attorney Mr. General, L. Mr. William Boatright, people. for the Gaunt, Assistant, William W. En Banc. Campbell opinion delivered
Mr.
court. Mongone, companion opinion 12,047, No. case, in a Our pros- People, was 617, that Pac. 84 Colo. al et hy alleged in which tenant, owner and ecuted for main- them decree affirmed an abatement we part on.premises building in taining owned in a a nuisance prosecutes by writ the case now be- who another, opinion. in connection with read should be us, fore by us in affirmed same decree error, to the This writ by prosecuted Gaskins, who, Emma case, other the the property says, complaint owners of the one of the court to be nuisance. district was declared which alleged owner and the the other as were not, was She pub- personally process, either served with tenant, appear, represented by lication, did not yet the counsel, court rendered an abatement decree alleged occupying her and the other owner and who tenant, maintained and conducted nuisance therein. plaintiff As to the owner, Gaskins, error who was not process appear, served with and did not we think her in- proper clusion the decree was not because the record on its face shows she was to the action. The clearly evidence, however, shows that a nuisance was maintained and conducted her tenant tenants and alleged the other and the de- already cree the court as to them, as we have deter- justified mined in the other case above to, referred was, and is, valid. only personally Gaskins, as owner, is relieved provisions the by of the decree, but her is bound brought against
it. occupy- If the action had been *3 ing tenant or alone, tenants and the evidence showed they maintained a nuisance thereon, an injunction abating good, pro- order the nuisance would be and the closing premises of year visions the decree the for one notwithstanding building valid, the owner of the party say, to the action. Counsel for however, Gaskins Gregg People, (176 that in 483) 65 Colo. Pac. at page 394, we held that where a tenant maintains nui- sance on the leased it is essential to an abate- knowingly permitted prem- ment order that owner the the to sup- ises be so or used, himself connived therein. The posed only declaration us was in a case where the de- in fendant the abatement action was the owner himself, charged and not a maintaining he, tenant, with the nuisance, of and, course, the evidence must show his guilt. say We did not there that where a defendant tenant maintains a nuisance the abatement binding against property. him is not the owner’s reasoning Gregg opinion in contrary, the is to the it and repeatedly has been so held the federal courts under provisions the National Act, Prohibition the of which, quite in statute to our similar those abatement, concerning nuisances. (2d) 345, the States, 11 Fed.
In v. United Schlieder Appeals of Fifth Cir of the Circuit Court United States property considering the of in the contention that cuit, the closed after owner cannot be ordered an innocent ejectment nuisance, of the tenant and the abatement be force this contention there would much said that provision the statute allow it federal were ing the pro injunction and that this bond the suit, although the vision, the owner is made ample protection property is him in case affords adjudged acts nuisance because of the unlawful to be a by giving quite similar tenants, of his a bond—which provided he would for in our statutes —that to the bond property. permit further unlawful use provides that after like federal statute, statute, Our abated, nuisance has evicted and the the tenant been guilty building, if of con he has not been owner of tempt appears pays proceedings, of court hen on which were made a costs, all fees and allowances building, files a the full value the property, bond immediately he will abate the
conditioned that may prevent exist and the same be nuisance that period kept ing within a of one thereat established may, judge year if the court satisfied thereafter, good premises, which were faith, order the owner’s to be abatement, under the order delivered closed so and the order of abatement cancelled far *4 In relate the itself. the as the same provision supra, said this case, the court Sclilieder remedy ample an owner of the afforded the statute nuisance, to be a conducted or main declared though by owner is not his the made tenant, tained rights pre party his itself, suit to the abatement concerning provision bonding the of the in the served junction. applicable here. that think decision is We Sup. Rep. In Gr al. field, States, os et v. United Ct. Supreme opin 329, the Court of the United States an purpose ion Mr. Sutherland, held that: “The provision (National Prohibition) of the statute authorizing injunction against occupancy and use is punitive preventive, Murphy States, United say 272 U. and it is no answer to the suit to participate the owner did not in the criminal act of the judge tenant.” The learned further said: “That the illegal tenant have been ousted and the use the premises ended is before the decree if the conclusive, ground apprehending evidence furnish reasonable repetition citing of such use,” authorities. And the court in further answer to the contention of the owner, said power that it “still is within the of the district court to permit premises occupied upon giv- the to be or used the surety ing of a bond with in the amount and sufficient upon prescribed by citing the conditions the statute,” approval supra. Schlieder In case, the Gros- supra, brought against field the action was case, both tenants and the owner but dismissed as tenant and passed against the decree the owner. In United States v. (2d) et Marhold, 18 Fed. al., 779, which was a case building, the tenant of a in which the owner wás party, wrongdoing, not a and was innocent of the it was held that the existence of such a state of facts would not preclude government’s right pursue to a conclu- n remedy sought, primarily sion the which directed premises, owner because the had a sufficient remedy provisions by protecting under the of the act injunction. bonding interests Denapolis (2d) In States, United 3 Fed. 723, it was “It of no said: concern to the lessees that the made a defendant. irrespective The suit is ownership. at the aimed unlawful use
At the same time the statute confers procure possession prop- of his erty by giving intoxicating liquors bond that will not be
587 principle is kept, This thereon.” or sold manufactured, although not she was applicable Gaskins, here. Emma her party, presumed know what use in law to is amade being making property. in fact It was of her tenant therefore, illegal purpose and, for her tenants an used not- owner, subject nuisance, but as a to abatement may repossess withstanding herself that fact, they thereafter premises by giving not will a bond that hence the abatement use; be devoted to unlawful party though binding a to the she was as her is States, v. United it made. In Farrell suit in which was Appeals, (2d) Third 21 Circuit, Fed. Court Circuit syllabus: in the “Knowl- as stated 318, edge that, it was held illegal pur- for are used pose as to their abatement nuisance.” is not essential property in mind has no borne that one
It should be property or that is in main in a used nuisance, may conducting taining A nuisance or the same. be both ' public private. of, The state direction under, county by municipal magistrate, a its a sheriff, its chief may summarily, corporation police, its and without legal proceedings, by their own act a resort abate private And a individual do if has so, nuisance. he injury Cyc. p. special seq. 29 suffered it. et 7 Colo. Pac. 693. Mullen, 345, 3 course, Denver Of private public one either a does who abates nuisance liability peril, exceeding assumes all his so at his legal right. thing law, But if the abated fact and in is, justified abating it he is without resort a nuisance, legal proceeding. law, If such be the find and we to a no case contrary, then cases like Windsor v. Mc Veigh, which hold that notice to a U. S. necessary, opportunity appli to defend controlling judgments as to or decrees of cable or abate permits defendant who ment of nuisance become nuisance and used such. Gros supra. if States, But al United this were field, et case, under the facts of here, the defendant the law, *6 complain preliminary given was notice to her before the abatement was for the rendered, decree alleged beyond jurisdic- owner Mrs. Gaskins was begun tion of the court at the time the action was and attorney the abatement entered, and the district indefinitely obliged was not to wait for her when return might personally against proceeding she be served before making illegal prop- tenants who were an use of her erty supposed of which she At events, know. all remedy by bonding injunction she has her now and repossessing property. herself of her
The effect of our decision in this case as complaint who,'though named as a defendant ap- of the owners, and one and served, did pear party, at the trial and was, therefore, not a to re- personally lieve her from the decree. The abatement property. order, stands her however, The liberty fit, is at to avail if she herself, sees of her repossess injunction prem- to bond of herself good if ises, she can convince the district court of her carry faith and that she will out the court’s order. judgment The of abatement affirmed, is therefore but affecting shall it not be construed as the defendant only personally, but as above as to her stated, Gaskins property. Modified and, as affirmed. modified,
Mr. Chief Me. Justice Butler Denison, Mr. Justice Walker dissent. dissenting.
Mr. Chief Justice Denison , majority opinion. I cannot concur with people had decree Gaskins which held year her house be a nuisance and closed it one any without on service her in manner and without no- tice to of her kind. She was a resident California. opportunity had no She to defend. govern
1. Section 1921, Code seems to me to proceeding equity, action this sort. It is a the whole
589
obviously
necessarily applies
Code
to all
bills
equity; certainly,
then,
section on service of sum-
applies
by publication
mons
and service
here,
should have
had
been
and without that service the
decree
void.
provided
if
2. But even the statute
that there need be
no
service,
decree without service would still be void,
process
requires'
op-
because due
of law
a notice with
portunity to defend. The decisions are too numerous to
McVeigh,
cite,
here are some
them. Windsor v.
McVeigh
93
People
274;
S.
S.,
U.
v. U.
The is made that this was an action in rem and necessary, therefore no notice was but case of Lon the. supra, v. Denver, doner was an action to condemn land park purposes and it was held the condemnation upon could not had be without of service summons owner. authority point, final The and conclusive on this how McVeigh, is ever, Windsor v. 93 U. 277-279, which awas case which involved the forfeiture the court of belonging ope land to in rebellion the United although States. The forfeiture was held void because, hearing. of the land had he notice, was denied a page opinion, referring McVeigh On 277 the S., v. U. supra, says Swayne “Mr. Justice said: ‘The order in respondent hearing. alleged effect denied the a It is he position enemy, inwas the of an alien and could no have locus standi in that forum. If and there, assailed he could liability right inseparable. defend there. The are upon jurisprudence A different result would be a blot our and civilization. subject. cannot hesitate or We doubt on the contrary principles
It would be to the first of compact right the social justice.’ and administration * * *” ‘‘ language principle at the terse lies stated this The jurisprudence. systems of well-ordered of all foundation person property, his is assailed his one Wherever liability right for the defend, he there inseparable. justice, recog- principle of natural This is a intelligence the common conscience as such nized pronounced against A sentence of a court nations. of all giving oppor- hearing him him, or without judicial tunity heard, is determination be respect rights, other and is not entitled ’’ tribunal. “ jurisdiction acquired by again page And on 279. upon question pass not to forfeiture the seizure is absolutely, pass upon question oppor- that but to after parties tunity in- its owner and has been afforded charges. appear and be heard To terested beyond proceedings, end some notification of arising prescribing seizure, the time within that appearance made, essential. Such must be is which public usually given proclama- monition, notification publication The manner of in some other form. tion, the notification itself is immaterial, the notification people indispensable.” So here: let us concede re- it, and hold to seize-Gaskins’ had proper yet straining till there could service, the nuisance op- judgment her without notice be no valid *8 portunity to answer. strictly only in that have able to rem, I been
The cases required, is not are ad- notice to owner where actual find, miralty ship but such defendant; where the is the cases analogous present generis, to the situa- are sui cases reasoning principles no have on but rest tion, application here. the Circuit Court District the IT. S. Court
Cases judgment, Appeals are not to we seem sustain They willing seem to violate the Four them. to follow McVeigh. in Windsor construed Amendment as teenth Rep. Sup. 329, 48S.,U. Ct. The case Grosfield judgment. L. Ed. not to seems us sustain the The brought against against case was the owner and tenant. It was as dismissed the tenant and prosecuted as the owner. The owner answered. opinion says only question The “the our considera- tion is whether the evidence submitted to the district justify opinion court is sufficient to the decree.” The then considers the evidence answer and concludes guilty good that the owners were and not in faith. There question taking property was no without notice to the owners. right give
It is said that the of the a bond provided gives §§ C. L. 6238 and him sufficient protection, but since that conditioned payment of adjudged costs and allowances that have been in the action without notice to the owner, it is hard to rights protected. see obliged pay how his He is judgment against part somebody else, rendered gain possession without notice to him, of his which has taken been from him without opportunity to be heard. judgment against Gaskins should be reversed with proceed get according
direction to or to dismiss the case. service to the Code agree Mr. Justice Butler and Mr. Justice Walker this dissent.