127 N.W. 1043 | N.D. | 1910
Lead Opinion
This is an action to abate a nuisance created by keeping and selling intoxicating liquors in a building in the village of Richardton, Stark county. In the complaint the defendant Leonard Bleth is charged with owning and having control of the lot on which the nuisance is alleged to have been maintained, and is charged with having allowed and permitted the maintenance of such nuisance. The de~ fendant Leonard Bleth admits that he is the owner of the lot, but denies that any nuisance was maintained thereon with his knowledge or consent, and he denies that he permitted or allowed the same to be maintained.
When the action was commenced a preliminary restraining order was: issued against both defendants, enjoining them from a continuance of the nuisance. After the service of such restraining order, the defendant Leonard Bleth secured an order to show cause why he should not
On the hearing of the order to show cause, the state produced affidavits of two citizens of Bichardton, stating that they are well acquainted with the premises, and that it was commonly known in Bichardton that this building was used as a place wherein intoxicating liquors were sold as a beverage for several years past, and that ¡said lot and building were apparently under the control of and owned iby the above-named defendants since January 1, 1909. On information and belief it is further stated in the affidavits that this building was used since that date as a place where intoxicating liquors were kept and sold.
After hearing the proofs of both parties, the court made an order, on September 7, 1909, that Leonard Bleth be allowed to pay the costs ¡and attorney’s fees, amounting to $89.60, and to give a bond in the sum of $1,000, conditioned that said Leonard Bleth immediately abate the nusiance complained of, and that he prevent any nuisance upon said premises for one year, and that upon the payment of said costs to the clerk and the filing of the bond, the court would, without further notice, make an order opening the building axid surrendering same to the ¡said Leonard Bleth, and abating the action. The bond having been filed and the costs and attorney’s fees paid in to the clerk’s office, the trial court made an order on September 13th that the premises be turned over to the defendant Leonard Bleth, and that the action be abated. ‘ The state excepted to the making of the order, and has appealed from the same.
1. It is claimed that the notice of appeal is not in compliance with the statute, and that the appeal should be dismissed on account of sucht defective notice. The defendant claims that it does not specify whether the appeal is from the whole of the order or from a part, thereof. The notice states that “the plaintiff appeals to the supreme court of the state of North Dakota from the order made and entered in the above-entitled action on the 13th day of September, 1909.”’ The provisions of the order are further stated in the notice. The statute provides that an appeal must be taken by serving a notice-upon the adverse party and filing the same in the office of the clerk of the court in which the order appealed from is entered, “stating the-appeal from the same, and whether the appeal is from the whole or a part thereof, and, if from a part only, specifying the part appealed' from.” Eev. Codes 1905, § 7205.
We think that the notice complies with the statute. The objection urged that the notice does not in express words state whether the appeal is from the whole of the order or from a part thereof is technical,, and not substantial. We think the notice substantially complies with the statute in this regard. An appeal from an order is necessarily from the whole. Nothing would be added to the effect of the notice-by stating that the appeal is from the whole of the order. The same-objection was before the court in Irvin v. Smith, 68 Wis. 220, 31 N. W. 909, and held of no force, under a statute which is like our own.
2. The order appealed from fails to state what affidavits, papers,, or evidence it is based on, and was therefore not drawn in compliance-with the provisions of § 7329, Rev. Codes 1905, requiring such statement. This omission is urged upon us as a ground for dismissing; the appeal.
Under the terms of this section it is made expressly discretionary whether the supreme court shall dismiss an appeal when based upon. tbla ground. In view of the fact that there is no doubt as to what, papers were used on the application, from an inspection of the record,, and in view of the fact that the order was made on the defendant’s-motion, we see no reason for dismissing the appeal in this case, al
3. It is also urged that the appeal should be dismissed on the ground* that the appellant has accepted the costs and attorney’s fees paid by the defendant as a condition precedent to the granting'of the order of" abatement. The claim is that the appellant should not be allowed to appeal from the order after having accepted the terms imposed thereby. The record does not show a payment to or acceptance of the money by the state. The original order directed the payment of the costs and attorney’s fees to the clerk. There is nothing in the record showing-an acceptance of them by the plaintiff. This makes it unnecessary to-further notice the point, as payment to the clerk of the court is not-payment to the plaintiff in this case, or to plaintiff’s attorneys.
4. It is also claimed that the order is not appealable, for the alleged reason that it was made without notice. We do not think that this; contention can be upheld. It appears that the order appealed from is based on the order of September 7th. That order was made after-notice, and the parties appeared and presented evidence in the form, of affidavits. There was a determination of every question at the hearing, but the final order was not made, inasmuch as the costs had not. been paid nor had the bond been filed. The court therefore ordered, that, upon compliance with these conditions, an order of abatement of the action and a surrender of the premises to the defendant would* be made without further notice. The notice of appeal states that the-order appealed from is based on the order of September 7th. Strictly speaking, the order appealed from was therefore made on notice,, and after argument and hearing.
The merits present an important question, not free from difficulty,, on which no cases directly in point have been cited or can be found. It involves the construction of § 9373, Rev. Codes 1905, pertaining' to the abatement of nuisances, and the turning over of the premises* to the owner under certain conditions, where nuisances have been maintained thereon by a tenant of the owner. So far as material on this appeal, that section reads as follows: “And said officer abating" such' nuisance shall securely close said building, erection, or place-where such nuisance was located, as against the use or occupation of the same for saloon purposes, and keep the same securely closed for-
The state claims that the respondent, as owner of the building, is not entitled to the benefit of this section, for the reason.that he had knowledge that the nuisance was being maintained on his lot, and in consequence thereof, that he consented to the maintenance of the same by not taking steps to have the same abated.
This court held, in State ex rel. McClory v. Donovan, 10 N. D. 610, 88 N. W. 717, that where the owner of a lot maintains a nuisance thereon himself, he is not entitled to the benefits of this section, which .applies only to leasehold premises. That construction was proper under the express language of the section. In this case the nuisance was ^established and maintained by the tenant- without any actual partici
Before the court should permit the property to be surrendered to the owner, however, it must be satisfied of the good faith of the owner. 'This means his good faith so far as abating the nuisance in the future is concerned. In determining this question of good faith, his past conduct in respect to the maintenance of the nuisance will be a proper matter for consideration. The good faith of the owner, however, is his good faith towards the permanent suppression of the nuisance in the future. Although he may have had some knowledge of the maintenance of the nuisance in the past, and did not, as promptly as he should have done, take measures to suppress the same, that fact does not necessarily debar him from the benefits of this section, if he can convince the court of his good intentions as to the future. We think that much was intended to be left to the discretion of the trial judge By this section. There is no positive evidence ,in this case that this defendant was aware of the fact that a nuisance was being maintained •on his lot. Therefore there is no evidence that he actually consented to the maintenance of the nuisance. The trial court found that the de
The supreme court of Iowa, under a statute almost identical with- § 9373, supra, except that it applies to owners generally, and not; especially to the owners of leased premises, has held that the owner is-entitled to the benefits of that section, and no distinction seems to-have been drawn between owners that were guilty of maintaining the-nuisance and those not guilty. (Morris v. Lowry, 113 Iowa, 544, 85 N. W. 788; Morris v. Connolly, 113 Iowa, 545, 85 N. W. 789.
It follows that the order appealed from should be affirmed, and it-is so ordered. All concur, Spalding, J., concurring specially.
Concurrence Opinion
concurring. I concur in the court’s finding that there is no evidence that respondent actually consented to the maintenance of the nuisance in question, and therefore concur in the affirmance of the order appealed from. In view of this finding, it is unnecessary to express an opinion as to the law which might be applicable in case the respondent had known of the maintenance of the nuisance- or had become pwrticeps criminis by renting his premises for the; purpose of maintaining a nuisance.
