Poss v. Norris, 29 S.E.2d 705

Poss v. Norris

29 S.E.2d 705 | Ga. | 1944

1. The act approved March 29, 1937 (Ga. L. 1937, p. 624), is not unconstitutional for any reason assigned.

2. Where L, by judgment of the court, had been permanently enjoined from operating any business in a designated structure, and the sheriff directed to padlock the same, and subsequently P purchased the structure and asked the court to modify the judgment and permit him to open it for the purpose of operating a legal business therein; and where the judge modified the judgment accordingly, and P violated the terms of the judgment, as modified, by operating an illegal business therein, it was not error for the court to revoke the modified order and direct the sheriff to re-padlock the structure.

3. Under the facts set forth in the preceding headnote, it was proper for the court, after a rule nisi had been served, to hold P in contempt.

No. 14780. APRIL 5, 1944. In March, 1942, Hon. J. Cecil Davis, as solicitor-general, filed a petition against John Lamar Lokey seeking to abate as a common nuisance a structure known as "John's Place" in McDuffie County, alleging it to be a "blind tiger" under the Code, § 58-110. At the hearing on March 12, 1942, an interlocutory order was entered, restraining Lokey from continuing any business in the building until further order of the court, and directing the sheriff to close and padlock the structure. The case was brought to this court, and the judgment was affirmed on June 18, 1942. See Lokey v. Davis, 194 Ga. 175 (21 S.E.2d 69). On September 16, 1942, *514 the jury returned the following verdict: "We, the jury, find in favor of the State;" and on September 19, 1942, a judgment was entered accordingly, directing that the restraining order previously granted be made permanent.

On July 8, 1943, while this injunction was still in force, George Poss, the present plaintiff in error, filed with the judge of the superior court an affidavit, alleging that he had "purchased the said structure from said John Lamar Lokey and is now in possession of the same; and that he desires to rent or lease the said structure to another as a place of business and not for any illegal purposes whatsoever;" and asked that the court "modify the injunction and restraining order against said John Lamar Lokey. and against said structure." Thereupon the court on the same day granted the following order: "It is hereby considered, ordered, and adjudged that the order referred to above be, and the same is hereby modified, as requested, so as to permit the said owner of said property to rent or lease the same for the purpose or purposes stated in said oath, with the understanding that it is not to be used for any illegal purposes whatsoever, until further order of the court."

Subsequently, in November, 1943, L. J. Norris, the sheriff of McDuffie County, filed with the court an affidavit stating that George Poss, as owner, and F. D. Moseley, as co-owner, employee, tenant, or lessee, were operating for profit and in violation of law (the above described structure) as a public dance hall, without taking out a license, and without securing permission from the ordinary of McDuffie County so to operate the same, as provided by the act of 1937 (Ga. L. 1937, p. 624). The court then passed an order, reciting the facts above set forth, and stating: "It is therefore considered, ordered, and adjudged that the structure commonly known as John's Place, above described, be immediately padlocked by the sheriff of McDuffie County, Georgia, and that the said George Poss and the said F. D. Moseley show cause before me on the 13th day of November, 1943, at 10 o'clock a. m. (e. w. t.) in my office in Thomson, Georgia, why the modification of said injunction should not be revoked, and why said structure should not continue closed as directed under the original injunction dated the 12th day of March, 1942, and why they should not be adjudged in contempt of court in violation of the terms of said *515 modifying order. Ordered further that this order be filed, and a copy of this order be served immediately upon the said George Poss and the said F. D. Moseley."

At the hearing, Poss filed a demurrer alleging, among other things, that the proceeding was illegal, in that it amounted to a separate and distinct proceeding to padlock the premises, which could not be done by the sheriff as movant, but only by a petition in the name of the solicitor-general; and further that it set forth no cause for contempt. The court overruled this demurrer. On the hearing of the issues on their merits the court found, and there was sufficient evidence so to do, that George Poss and F. D. Moseley were operating a dance hall in said structure in violation of law, and passed the following order: "The above-stated citation for contempt coming on for a hearing at the time and place previously ordered, and after evidence was submitted by all parties to this proceeding, it is considered, ordered, and adjudged that the modifying order passed by the court in the above-stated matter on the 8th day of July, 1943, and set out in the citation for contempt, has been violated by the said George Poss and the said F. D. Moseley, and they, the said George Poss and the said F. D. Moseley, are adjudged to be in contempt of court in the violation of said modifying order. It is further ordered that the modifying order dated the 8th day of July, 1943, set out above, be revoked, and the original order in said case, dated the 19th day of September, 1942, ordering the structure and building, known as John's Place, set out in the original petition and described therein, closed and padlocked by the sheriff of McDuffie County, Georgia, shall continue in force until the further order of the court. Ordered further, that the said George Poss and the said F. D. Moseley may purge themselves of contempt by paying $20.50 court cost of this proceeding. In open court, this the 20th day of November, 1943."

Poss excepted to the order overruling the demurrer, and to the judgment last-above quoted, which revoked the modifying order of July 8, 1943, and continued in force the original order of March 12, 1942. In the bill of exceptions, J. Cecil Davis, solicitor-general, is made a party defendant jointly with L. J. Norris, sheriff. The plaintiff in error contends that the affidavit of the sheriff, filed with the judge in November, 1943, was no part of the proceeding which had previously been instituted against Lokey; but that it was a separate and distinct action, and could not proceed at the instance and in the name of the sheriff, because a proceeding to abate a public nuisance must be brought in the name of the solicitor-general. The State, as defendant in error, insists that the act of the sheriff, in filing an affidavit setting forth that the plaintiff in error was violating the order of the court by operating a dance hall in violation of law, was not the institution of an action to abate the dance hall as a nuisance; but was merely information to the judge upon which he could consider and revoke his former order of July 8, 1943, modifying the original injunction previously issued against Lokey on March 12, 1942; and for the further purpose of determining whether the plaintiff in error was in contempt of court. A solution of this question depends upon whether the permanent injunction against Lokey could be reopened, and whether Poss, the plaintiff in error, would be bound by a modification thereof. The temporary restraining order, the interlocutory injunction, and the permanent injunction issued after the jury trial in the Lokey case. were substantially the same, and in effect did two things, viz., (1) enjoined Lokey from conducting any business in the described structure, and (2) directed the abatement of the nuisance by ordering the sheriff to close and padlock the structure.

1. The court did not err in overruling the demurrer. (a) The first ground was met by amendment. (b) The second ground was, that the affidavit of L. J. Norris did not show "that the ordinary . . . had levied a license" for the operation of a dance hall as prescribed by the act of 1937 (Ga. L. 1937, p. 624). This was not a necessary allegation, as it would be a violation of law to operate a public dance hall without the permission of the ordinary irrespective of whether or not he had levied a license tax. (c) The act of 1937 (Ga. L. 1937, p. 624), relating to public dance halls and other places, does not violate art. 1, sec. 1, par. 3, of the constitution of Georgia (Code, § 2-103), providing: "No person shall be deprived of life, liberty, or property, except by due process of law;" or the 14th amendment to the constitution of the United States (Code, § 1-815), which contains, in addition to a similar due-process *517 clause, the further provision that no State shall "deny to any person within its jurisdiction the equal protection of the laws."Ingram v. State, 193 Ga. 565 (19 S.E.2d 493).

2. When Poss invoked the ruling of the court and secured the modification order which abated the padlock provision of the previous judgment, the modifying order permitting this abatement was conditioned upon the structure not being used for an illegal purpose. The effect of the position taken by the plaintiff in error is, that he can accept the benefits acquired under the modifying order, and not be bound by the conditions attached thereto. This can not be done; he invoked the ruling and must accept the benefits cum onere. "A party must be held bound by a ruling which he invoked, and by a judgment in his favor which he procured." Butler v. Tifton c. Ry. Co., 121 Ga. 817 (5) (49 S.E. 763); Neal Loan Banking Co. v. Chastain, 121 Ga. 500,503 (49 S.E. 618); Reynolds v. Reynolds, 153 Ga. 490,493 (112 S.E. 470); Harper v. Lindsey, 162 Ga. 44 (2) (132 S.E. 639); Kaiser v. Kaiser, 195 Ga. 774 (25 S.E.2d 665). "Where one petitions the ordinary for letters of administration and prays that a citation be issued, and a caveat is filed by the heirs at law, and this by consent of parties, is tried, and the ordinary's judgment is against the petitioner, and the latter appeals therefrom to the superior court, it is too late, when the cause is before the jury on the appeal trial, for the petitioner to call in question the regularity of his original application and the due publication of citation founded thereon. He is estopped from so doing." Mandeville v. Mandeville,35 Ga. 243. "Where partitioners of land are appointed to sell the land and return the proceeds into court, and they do sell, and the tenants in common then petition the judge, at chambers, to pass an order directing the partitioners, to pay the fund to the counsel of the tenants in common, which order is granted, and the money paid in obedience to it, the tenants in common are estopped from denying the authority of the judge to pass such an order at chambers, and can not require the partitioners, by rule, to pay the money into court." Hurst v. Whitly, 47 Ga. 366. See also Gay v. Sanders, 101 Ga. 601 (2) (28 S.E. 1019).

3. Where one violates a restraining order granted by a court having jurisdiction of the person and subject-matter, such order is binding upon the party restrained, unless modified, set aside, or *518 reversed, and a disobedience of the same affords ground for an attachment for contempt. Where a court makes an order in a cause over which it has no jurisdiction, it is a nullity. No one is bound to obey it, or is liable for disobeying it. But if the court has jurisdiction to make the order, it must be obeyed however wrong it may be. Russell v. Mohr-Weil Lumber Co.,102 Ga. 563 (29 S.E. 271); Holbrook v. James H. Prichard MotorCo., 27 Ga. App. 480 (109 S.E. 164). In the instant case, the court had jurisdiction of the person and the subject-matter. The Code, § 24-105, provides punishment for contempt against any person who disobeys an order of the court. Section 37-123 provides that all orders and decrees of the court may be enforced by attachment against the person. Section 37-1208 provides that every decree or order of a superior court in equitable proceedings may be enforced by attachment against the person for contempt. Such power is inherent in the court. Hayden v.Phinizy, 67 Ga. 758 (2): Plunkett v. Hamilton, 136 Ga. 72 (70 S.E. 781); Gaston v. Shunk Plow Co., 161 Ga. 287 (3) (130 S.E. 580). In a proceeding of the kind now under consideration, the judge may act on information from any source.Tindall v. Nisbet, 113 Ga. 1114 (39 S.E. 450).

The judge having heard evidence, pro and con, on the question whether Poss, the plaintiff in error, had violated the terms of the order by operating a public dance hall without a license, contrary to the provisions of the act of 1937 (Ga. L. 1937, p. 624). that portion of the judgment complained of, adjudging him in contempt of court, was not error.

Judgment affirmed. All the Justices concur.