91 P. 1073 | Kan. | 1907
The opinion of the court was delivered by
The principal contentions of the appellants have been decided adversely to them in this court: The proceeding to punish for a violation of the order of injunction is a part of the injunction suit and not another independent action; the accusation need not possess the formalities of an indictment or information; the court will take judicial notice of the order of injunction. (The State v. Thomas, 74 Kan. 360, 86 Pac. 499; The State v. Forner, 75 Kan. 836, 89 Pac. 674.)
It is hardly necessary to say that in the exercise of a jurisdiction conferred upon him by statute a judge at chambers will take judicial notice of all the facts which the same judge in exercising the same jurisdiction, sitting as a'court, would take. A judge at chambers, then, will take judicial notice of his former orders made when he sat as a court. The judge has not the
It is contended that, as the appellants were not parties to the injunction suit, they could not be convicted of a violation of the order therein unless they were proved to have had notice or actual knowledge thereof.
The appellants were charged, jointly with John Hebrank, who was the owner of the building and who was a party to the injunction suit, with a violation of the order therein. And, although it appears Hebrank was not arrested or tried for the contempt, there is probably sufficient circumstantial evidence to justify a finding that appellants had knowledge of the order and conspired with Hebrank to evade and violate it. Upon what evidence or presumption the judge based his decision we are not advised by the record. No evidence that they had actual knowledge of the order was necessary. They admit they had possession of the building in which, but a few months before, the owner, his codefendants “and all other persons whomsoever” were enjoined from maintaining just such a nuisance as appellants were maintaining. In wilfully embarking upon an unlawful business they might well be presumed to have scanned every possible source of danger and to have not overlooked so public a proceeding as the injunction suit. It is more probable that they thought they had cunningly evaded it. It matters not: The proceedings of the courts for the maintenance of order and the enforcement of law are not thus to be trifled with. The decree of injunction was against the defendants in that suit, and in a sense was ad rem — against the property, or rather against a certain illegal use of the property. It cut off perpetually the use of the property for
“The decree was against plaintiff’s lessor, who was the defendant in the suit. It affected his right and interest in the property; that is, it limited and cut off his power to use the property for the unlawful keeping and sale of intoxicating liquors. The decree was a restriction upon the use of the property which followed it as a burden, and, as it were, an encumbrance. . Surely the plaintiff, in taking the property, took it subject to this restriction" and burden. In our opinion, these conclusions are based upon familiar doctrines applicable to all actions and proceedings in the courts. If the rule we announce be not recognized, the attempt to enforce injunctions to abate nuisances of all kinds would be vain. The defendant perpetrating the nuisance could wholly defeat the law by leasing or transferring the property to one who had no notice thereof. He could begin anew the perpetration, and could only be enjoined by a new action, and when so enjoined he could in a like manner transfer the property, and so on indefinitely defeating the law, to the scandal of public [justice and the oppression of the people.” (Page 56.)
The only other question it is deemed necessary especially to notice is the allowance of $100 as attorney’s fees for the county attorney without evidence being introduced as to the value of the services rendered by him. Where attorney’s fees are allowed to be taxed as costs, as in the statute under which this suit was brought, it would seem the better practice for the state to offer evidence of the extent and value of the services performed, that the defendant might cross-examine the witnesses and offer rebuttal evidence. In this case, however, it is apparent that the judge was fully conversant with the extent of the services, and he will be presumed to have known the value thereof. (Noftzger
In many lawsuits the more burdensome part of the lawyer’s duties are discharged out of court and beyond the observation of the judge, and in such cases evidence would be required thereof in court. In this case it is evident that his own senses and observation were the best witnesses possible to the judge, and this court is able to say from the record that under the circumstances the sum allowed as fees was not unreasonable for the services rendered.
The judgment is affirmed.