4 F.2d 983 | 2d Cir. | 1925
(after stating the facts as above). We shall not discuss the evidence tending to show that liquor was sold in Duignan’s place in such wise as to create a nuisance within the statute; the trial court’s .ruling was quite within our decisions in Wiggins v. United States, 272 F. 41, and United States v. Reisenweber, 288 F. 520.
Exactly what appellant meant by his motion for a jury trial is not clear from the record. If his thought was to try before a jury the issue of nuisance, the motion had no foundation in law.
. The applicable sections of the National Prohibition Law have a long legal history. The legal concept of extending by legislative fiat the definition of a public nuisance to something theretofore legal, and then calling upon equity to abate it, is found in the Kansas statute of 1885, quoted by Harlan, J., in Mugler v. Kansas, 123 U. S. 623, 670, 8 S. Ct. 273, 31 L. Ed. 205; and is there expressed in a form distinctly more violent than are the nuisance sections of the Volstead Act. The thoroughness with which the Supreme Court upheld the Kansas method has been the sustaining foundation of prohibitory legislation of sundry kinds for 40 years, while, as for jury trials, we quoted the rule in the Reisenweber Case, supra, at page 523; and it is that, when the Legislature constitutionally extends the definition of public nuisance to anything, such newborn nuisance, being created for destruction, may be destroyed without jury intervention.
If, however, Duignan’s motion be thought to be confined to the ease raised by the cross-bill, he was not in a position to make the motion, for he never answered or otherwise raised an issue with the Realty Company.
It is not doubtful that equity has jurisdiction to decree cancellation of written contracts; it is a quite distinct and rather extensive chancery field. Yet it may happen that entry thereupon must be denied a plaintiff, because he has an adequate remedy at law, and we shall now assume that Duignan deemed that Realty Company’s cross-bill was equivalent to an ejectment or dispossess proceeding under the New York statute, where juries are of right.
If so, he was obliged by some pleading to raise the jurisdictional question. If he had answered on the merits, and tried the case without denying jurisdiction, he would be concluded, under Southern Pacific Co. v. United States, 133 F. 651, 66 C. C. A. 581, and cases cited; and a fortiori is he concluded by trying the ease fully while in default for want of an answer.
We are not unaware that, even had Duignan fully pleaded lack of jurisdiction in the District Court to try the -cross-bill, either with or without a jury, his contention has met with defeat in Grossman v. United States (C. C. A.) 280 F. 683, and United States v. Boynton (D. C.) 297 F. 261. The subject is interesting, but is not now before us.
Decree affirmed, with costs.
