161 N.W. 614 | S.D. | 1917
Lead Opinion
Application for an order fixing the amount of a supersedeas undertaking on appeal to this court from the judgment of the circuit court of Codington county, S. D.
This is an action to abate a public nuisance. The trial court found that the defendant Denis, as lessee of the premises in the city of Watertown known as' the West or Arcade Hotel, was conducting said premises as a house of prostitution, assignation, and for the illegal sale of intoxicating liquors, and that such unlawful business was the principal business of the so-called hotel. The judgment provided as follows:
“It is ordered, adjudged, and decreed as against the defendant E. L. Denis, his agents, servants, employees, attorneys, and*412 all persons claiming under him, or acting under his direction or authority, be, and they are hereby, -perpetually enjoined and -restrained and prohibited from conducting any business or performing any acts in or about the premises [-describing them-] ; that -the said defendant E. L. D-enis, bis agents, servants and employes, attorneys, and all persons -claiming under him--acting under his direction or authority, be perpetually prohibited, restrained, and enjoined from o-ccupjbng, frequenting, using, going upon, operating', let-tin-g, sub-letting, -or otherwise transacting any business in or upon s-ai-d premises known as the Arcade Hotel, also known a-s the West Hotel, in the -city of Watertown, S. D.”
It is contended 'by applicant that there is no warrant in law for -the judgment as rendered; that it -could lawfully only restrain defendant from continuing the unlawful acts.
The state contends that Denis pays no- attention to temporary injunctions, and that, if permission is granted him, pending appeal, to transact lawful business in the hotel, he will continue to- transact such unlawful 'business. Indeed, the -trial court found •that from- July to November, 19x6, the defendant- Denis continued su-ch unlawful- business in the f-a-ce of a temporary injunction. It would seem, however, that -contempt proceedings ought to have been a sufficient remedy t-o prevent -the violation of the temporary injunction.
Upon the filing of an undertakiijg in the usual form in the sum of $3,000, -with sureties to -be -approved by -the judge of the trial court, and with the further -provision therein that the undertaking shall -cover the payment of such sum or sums, if, any, as
Other matters urged by applicant relating to practice and procedure are not deemed matters properly before us for consideration ujpon this application.
Dissenting Opinion
(dissenting). We agree that this court should not at this time go into the questions of practice raised. If it shall be conceded, and we think it must, that the trial Court has jurisdiction to abate a nuisance by closing a building the wrongful use of which constitutes such nuisance, then there are left for our consideration but two questions: (a) Can there ever be- a public nuisance so glaringly wicked and heinous as to warrant the exercise of such jurisdiction? (b) If so, then when a trial court has exercised such jurisdiction in a proper case and has refused to stay the operation of its decree pending an appeal therefrom, should the appellate court, except there appear reasonable ground to doubt the justice of ’the decree under the facts found by the trial court, overrule the trial court and stay the operation of such decree? There can be but one answer to the first question: Facts may arise that will justify the exercise of such jurisdiction. The record herein presents such facts. No good purpose could be served by a recital thereof: suffice it to say that they are almost beyond belief, and, if true, show defendant Denis to be a man wholly devoid of any sense of decency or of his obligations to his fellow man. Answering the second question, we can only say that, unless such a decree should always be stayed pending appeal, and therefore the trial court was without any discretionary power in the matter, we should not disturb the ruling of such court. There are two mat