193 P. 268 | Cal. Ct. App. | 1920
The appeal is from the judgment on the judgment-roll alone.
The object of the action is to abate a nuisance alleged to have existed and been maintained in and on certain premises described as the west one-half of the east one-half of lot No. 3, in the block between Second and Third and L and M Streets, in the city of Sacramento, "and particularly the building known as No. 220 L Street."
The complaint alleges that the appellant, Arcega, was at all the times referred to in the complaint and is the owner of said premises and building; that certain fictitiously named females have and claim some interest in and upon said real property and are the owners of the furniture, fixtures, musical instruments, and other movable property situated in said building, "as relator is informed, believes and alleges"; that "on or for some time prior to the thirteenth day of September, 1917, and ever since that date, said premises were and now are used for the purposes of lewdness, assignation and prostitution, and upon said premises acts of lewdness, assignation and prostitution were held and did occur, and said premises were and now are a nuisance under the laws of the state of California."
The relief asked for is that the alleged nuisance be perpetually enjoined, that the furniture, etc., be removed from said premises and building and be sold as provided by law, and that the premises and building be closed against their use for any purpose for a period of one year.
The court, among other things, found: "That on and for some time prior to the thirteenth day of September, 1917, the building and property herein described was, during all of said time, used for the purposes of lewdness, assignation and prostitution, and the said building was and now is a nuisance under the laws of the state of California."
It will readily be observed that the action is founded on the "Red-light Abatement Act" (Stats. 1913, p. 20).
There are two points advanced by the appellant for a reversal, viz.: 1. That the complaint does not state a cause of action under the abatement act and is ambiguous and uncertain in certain specified particulars; 2. That the court failed to find upon the question whether the alleged nuisance existed at the time of the commencement of the action and that such failure renders the decree abortive. *235
1. As to the proposition first above stated, the appellant makes the identical points which are made against the complaint, in People v. Arcega, action No. 2148, post, p. 239, [
2. The contention of the appellant with regard to the second point is that, while the court directly finds that the building complained of herein was, on and for some time prior to the thirteenth day of September, 1917, "used for the purposes of lewdness, assignation and prostitution," there is no finding that the same was used for like purposes down to the time of the filing of the complaint, which was September 28, 1917, since, so the contention proceeds, the language immediately following that finding, to wit: "and the said building was and now is a nuisance under the laws of the state of California," is the only reference in the findings to the fact, if it was a fact, of the continuance of the nuisance to the time of the filing of the complaint and involves a conclusion of law and not a finding of fact. In support of that contention, appellant cites a number of cases, among which is the recent case ofPeople v. Goddard (Cal.App.),
In that case, the complaint in which was filed on the twenty-eighth day of September, 1917, the trial court, after finding that on and prior to the thirteenth day of September, 1917, the building there complained of was used for the purposes of prostitution, lewdness and assignation, and that "the said upper story of said building was and now is a nuisance under the laws of the state of California," further found that, before the filing of the complaint in said action the owner of the building caused the female inmates thereof to be evicted therefrom and closed said building to said females, and that "at the time of the filing of said complaint there was no tenant or other person whatever occupying said premises," but also found that "the removal *236 of the tenant from said premises was not made in good faith by said respondent for the purpose of abating said nuisance." We reversed the judgment upon the ground that it was not supported by the findings, holding also that there was no evidence to support the finding that the removal of the female inmates of the building by the owner, as found by the court, was not made in good faith or for the purpose of abating the nuisance. We further held that, if the finding that "the building was and now is a nuisance under the laws of the state of California" was to be treated and accepted as a finding of fact, said finding was in irreconcilable conflict with the finding that the female inmates of the building had been by the owner thereof, prior to the filing of the complaint in the action, removed therefrom and that no persons whatsoever were then occupying the building. Among other things, we said in the opinion in that case: "It is very clear that the finding that 'the upper story of said building was and now is a nuisance under the laws of the state of California,' taken alone or byitself, is a conclusion of law and does not involve a finding of fact; but, if it were deemed necessary to concede that, in the connection in which it is employed, it might justly be held to constitute a finding of an ultimate fact, it is nevertheless plainly manifest that it is wholly inconsistent with finding No. 5," which found that the women had been removed from the building. Thus far there is nothing in the opinion in the Goddard case from which it is to be inferred that it is therein held or that there was any intention of holding that the finding referred to, although, taken by itself, a conclusion of law, may not be used in such a connection as that it may properly be treated and considered as a finding of an ultimate fact. But, further on in the opinion, we also declared: "But we are still of the opinion that the alleged finding that the building 'now is a nuisance' is a conclusion of law, notwithstanding the connection in which it is used." It is this language of the opinion upon which counsel for the appellant lay special emphasis as supporting their position that such a finding or conclusion can under no circumstances be treated as a finding of fact. But it will be noted, on a careful reading of that language of the opinion, that we do not thereby say that such a conclusion may not, under some conceivable conditions, be considered as a finding of an ultimate *237 fact. We were merely pointing out that the purported finding that the building "is now a nuisance," etc., added nothing to and was in no manner aided by the initial portion of the finding of which it was a part to the effect that "on, and for a long time prior to the thirteenth day of September, 1917, the upper story of said building was used for the purposes of lewdness, assignation and prostitution," etc. Moreover, we showed in the opinion that there was no evidence in the record showing or tending to show that the nuisance denounced by the Abatement Act existed after the thirteenth day of September, 1917, other than any inference that might reasonably be afforded by the evidence that such a nuisance had been therein maintained prior and down to that date.
In the present case, the complaint alleges, as we have above shown, that the building in question was, "on or some time prior to the thirteenth day of September, 1917, and ever sincethat date, said premises were and now are used," etc.
[1] This is a civil case, and the rule as to this case is, therefore, the same as that which applies to other civil actions, namely, that, in considering an appeal on the judgment-roll alone, all presumptions and intendments will be indulged in support of the judgment; that the evidence supported the findings; that injury is no longer presumed from error but must be affirmatively made to appear. (Myers v.Canepa,
It is not to be understood that we approve the form of the finding under consideration. As in all other civil cases, there should be a direct finding upon every fact vital to the judgment, and legal conclusions in the findings, where direct findings can be made, should be avoided, although it is often true that certain findings essential to the support of a judgment may, in a sense, involve conclusions of law. This is frequently justifiably the case in pleadings. (Ellis v. CentralCalifornia Traction Co.,
The judgment is affirmed.
Nicol, P. J., pro tem., and Burnett, J., concurred. *239
