16 N.W.2d 734 | Neb. | 1944
This is an appeal by the state from a decree entered upon
In the former appeal this court determined that the premises in question were being operated by the defendants contrary to the provisions of the Liquor Control Act and constituted a common nuisance as defined by the provisions of that act. This court then said: “But where, as here, the main business of the defendants contravenes the law of the state and the legitimate business of the place is either a sham or a minor part of the whole, the only adequate remedy consists of an abatement of the nuisance by closing the place by injunctive process in the manner prescribed by the legislature.
“We conclude therefore that the trial court was in error in failing to enjoin the operation of the roadhouse described in the petition, pursuant to the prayer thereof. The cause is therefore reversed with directions to the trial court to abate the nuisance, pursuant to the provisions of section 53-377, Comp. St. Supp. 1941.” State ex rel. Johnson v. Hash, 144 Neb. 495, 13 N. W. 2d 716.
The pertinent part of the mandate issued upon the final determination of the issues presented in the former appeal is: “ * * .* it was considered by said Court a certified copy of the opinion of the court being hereto attached and made a part hereof, that the judgment rendered by you be reversed at the costs of said defendants taxed at $131.60' and the cause remanded with directions to abate the nuisance, pursuant to the provisions of Section 53-377, Comp. St. Supp. 1941.”
The pertinent part of the judgment entered on the mandate is: “ * * * that the defendants Rex Hash and Bertha Hash be and they are hereby perpetually enjoined from permitting or suffering upon the following described premises, to-wit: * * * each of the following acts: sale, possession or consumption of intoxicating liquor; spiking, selling or using set-ups or mixes; permitting the place to become
It is the contention of the attorney general that the mandate calls for the enjoining of the business- as a common nuisance and the padlocking of the buildings upon the premises used in maintaining such nuisance agreeable t'o the provisions of section 53-377, Comp. St. Supp. 1941, now section 53-199, R. S. 1943. Appellee contends that the trial court is limited by the strict language of the mandate and that the decree entered exceeds its scope.
It will be noted that the mandate makes the opinion of the court a part thereof by reference. Under such circumstances, the opinion of the court can properly be examined in determining the nature and terms of the judgment to be entered or action to be taken. This seems to be the rule where the opinion is made a part -of the mandate or where the remand is with directions to enter a decree in conformity with the views “herein expressed” or “in accordance with the opinion.” In Muhlke v. Muhlke, 285 Ill. 325, 120 N. E. 770, a case similar in principle to the one at bar, it was said: “In construing the mandate or in determining what was decided by the reviewing court and what was ordered done the opinion of the court may be examined and consulted, where the remand is stated to be with directions to enter a decree in conformity with the views ‘herein expressed.’ (4 Corpus Juris, 1212; West v. Brashear, 39 U. S. 51.) As the mandate of this court in this case is only in the same general language of the opinion in its directions to the lower court, we must look solely to the opinion to determine the questions now before us.” See, also, 5 C. J. S., p. 1494 et seq.
We are of the opinion that the trial court, under the mandate issued, is required to abate the nuisance by permanently enjoining the operation of the business found to constitute the nuisance. In addition thereto the trial court is required, by section 53-199, R. S. 1943, to order the building used in furtherance of the business closed and padlocked for not less than three months nor more than two years and until certain other conditions contained in the statute are met. The trial court in its decree ordered the building closed and padlocked for a period of one year and thereafter until the requirements of the statute were complied with. The defendants contend that the period of one year is excessive. We have examined the record and find no abuse of discretion on the part of the trial court in its disposition of this phase of the case.
The judgment is reversed and the cause remanded with directions to enter a decree abating the nuisance by permanently enjoining the defendants from operating the business held to constitute a common nuisance under the Liquor Control Act and by entering a further order that the building in which the nuisance was furthered and maintained be closed and padlocked for a period of one year, and thereafter until the defendants, the owners thereof, shall give bond with sufficient surety to be approved by the court, in the penal sum of not less than $1,000 payable to the state and conditioned as required by law, and that during said period of one year defendants shall not enter upon said premises except for the purposes of making necessary repairs.
Reversed, with directions.