Bunkley v. Commonwealth

• Decision Date: 16 June 1921
• Citation: 108 S.E. 1
• Court: Virginia Supreme Court
• Parties: BUNKLEY et al. v. COMMONWEALTH.

108 S.E. 1

BUNKLEY et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Appeal from Corporation Court of City of Newport News.

Suit by the Commonwealth against Blanche R. Bunkley and another to have the premises maintained by defendants declared a nuisance and enjoined and abated. Decree for complainant, and defendants appeal. Affirmed.

Jno. N. Sebrell, Jr., of Norfolk, and J. Winston Read, of Newport News, for appellants.

The Attorney General, for the Commonwealth.

SAUNDERS, J. In February, 1920, the commonwealth of Virginia, at the relation of C. C. Berkeley, commonwealth's attorney for the city of Newport News, brought its bill in equity, pursuant to the provisions of the Acts of Assembly 1916, p. 780, c. 463, alleging that Blanche R. Bunkley, alias Blanche R. Wilson, and William C. Bunkley, her husband, since November, 1918, had knowingly and unlawfully maintained and kept, and were knowingly and unlawfully maintaining and keeping a certain designated building as a house of ill fame and for the purposes of lewdness, assignation and prostitution, resorted to during said period of time by idle and dissolute persons, both men and women, for the purposes of lewdness and prostitution. The bill contained other allegations appropriate under the statute, and concluded with the prayer that the house and lot, and contents of said house, be declared a nuisance, and the same be enjoined and abated, as provided by law.

Petitioners in error filed an answer to this bill, denying all of its allegations.

Further, they filed an application for an issue out of chancery with accompanying affidavits. Upon this application the court ordered an issue, and a jury was impaneled to try the same. Thereafter the jury returned a verdict for the petitioners upon all of the issues submitted by the court.

The attorney for the commonwealth moved the court to set aside this verdict, upon the ground that the issues had been improvidently awarded, and that the said verdict was contrary to the evidence, and to enter "judgment upon the case, notwithstanding said verdict." The court having taken time to. consider, concluded that the evidence sustained the allegations of the bill, declined Co accept the findings of the jury, and entered a decree whereby the lot and house thereon, and the furniture and equipment of same, were declared to be a nuisance, and enjoined and abated. The equipment and paraphernalia were directed to be sold, and the house and every part thereof ordered to be elosed by the officer of the court for the period of one year from date. The further provisions of the decree need not be recited.

From this decree an appeal was allowed, and the case is now before this court for review. The petition for appeal assigns the following errors:

I. The court erred in disregarding the verdict of the jury, and entering a decree sustaining the allegations of the bill and ordering the destruction of the property.

II. The said act is in violation of the Constitution of Virginia.

III. The said act is in conflict with the Constitution of the United States, and especially the Fourteenth Amendment thereof.

Under assignment No. I, the complainants set forth that the evidence was in the highest degree conflicting, and that, not only was an issue properly awarded in the first instance, but that it would have been error not to award such issue.

Further, that having submitted certain issues to the determination of a jury, the court should have abided by the verdict found upon those issues.

In support of these contentions, various Virginia precedents are cited.

It is true that in cases of exceptional difficulty and conflict in testimony, it is error for the court to fail to order an issue out of chancery, on its own motion, and as a general proposition, when an issue is properly ordered, it is the practice, unless good cause appears for the contrary course, for the chancellor to abide by the verdict.

"The object of an issue * * * is to satisfy the conscience of the chancellor in a doubtful case." Stevens v. Duckett, 107 Va. 17, 57 S. E. 601. "But an issue is not directed merely because the evidence is contradictory." 107 Va. 22, 57 S. E. 603.

The propriety of ordering an issue is determined by the application of sound legal discretion to the circumstances of the situation.

"Awarding of an issue out of chancery rests in sound discretion, subject to review on appeal. A mistake in its exercise is a just ground of appeal. * * * The * * * fact that there was an issue was directed and tried, and a verdict rendered for the plaintiff, affords no reason why the court should not reverse the decree, if the order directing the issue was improperly granted." 107 Va. 23, 57 S. E. 604.

To justify the order for an issue out of chancery, "the conflict of the evidence" must be "so great and its weight so nearly evenly balanced that the court is unable to determine on which side the preponderance is." 107 Va. 20, 57 S. E. 603.

"It does not follow that an issue is necessary and proper in every case where the evideuce happens to be conflicting. If this was the rule, the chief time of the chancery courts would be occupied with trials before juries, or in considering their verdicts. The circuit courts andthe judges of this court are constantly called upon to decide questions of fact upon testimony of a very conflicting character." 107 Va. 22, 57 S. E. 603.

"Directing an issue * * * is not * * * a mere arbitrary discretion. * * * Such discretion must be exercised upon sound principles of reason and justice. A mistake in its exercise is a just ground of appeal, and the appellate court will judge whether such discretion has been soundly exercised in a given case." Miller v. Wills, 95 Va. 350, 28 S. E. 342.

See, also, to same effect, Catron v. Norton Hardware Co., 123 Va. 386, 96 S. E. 853.

In the case of Stevens v. Duckett, supra, the trial court awarded an issue out of chancery upon the basis of an affidavit filed by the appellee, in which it was stated that the issue to be determined would be rendered doubtful by conflicting evidence of the opposing party, and that he believed that an Issue out of chancery should be directed; and also a joint affidavit by counsel for the appellee, saying that they had read the affidavit of their client, that they were fully acquainted with the points in issue, and knew that the evidence would be conflicting, and that in their opinion it would be proper to award an issue out of chancery. This court set aside the order of the trial court, and in that connection used the following language:

"We are of opinion that the circuit court, in directing the issue in this case, acted upon wholly insufficient affidavits, and failed to exercise the discretion contemplated by law in such matters. * * * The decrees complained of must be set aside." 107 Va. 23-24, 57 S. E. 604.

Also on pages 21, 22 of 107 Va., on page 603 of 57 S. E., we find the following:

"In the case before us, the affidavits of the appellee and his counsel are mere opinions that in their judgment the evidence of the opposing party would be conflicting, and an issue out of chancery proper. * * * The Legislature, by the express language of the statute, reposed iu the court the exercise of discretion in determining when there should be an issue out of chancery, and it could hardly have intended, in the same breath, to require the court to surrender its judgment and discretion and transfer the decision of that question to a party to the litigation, or his counsel.

"We are of opinion that it was not intended by the statute [section 3381, Va. Code 1904] to change the firmly established rule of law, that the chancellor was to properly exercise his discretion 'on sound principles of reason and justice;' * * * Any other interpretation of the statute would * * * make the whole matter of directing an issue one of right and not of discretion on the part of the chancellor."

In the instant case the petitioners, Blanche Bunkley and her husband, made application for an issue by a petition sworn to by Blanche Bunkley. This petition re cited that a bill in equity had been filed against them, and that the complainant had filed an application for a temporary injunction, accompanied by the affidavits of one Eason and of other witnesses, which complainant alleged supported the allegations of the bill. Petitioners stated in said petition that they would—

"introduce a large number of witnesses who would contradict the witnesses of the complainant, and that there would result a great conflict in the testimony to be offered by the parties to the suit, presenting issues of fact which are necessary to be determined, out of a mass of conflicting testimony, in order to arrive at a correct decision of the case. That, therefore, it was eminently proper that the court should enter an order directing an issue out of chancery to be tried by a jury, and the court was asked to award such an order."

The case in judgment is plainly ruled by the case of Stevens v. Duckett, supra. If it was error in the trial court to order an issue upon the affidavit filed in that case, and it was so held, then it is manifest that upon a like affidavit in the pending case the court erred in directing an issue. This case should therefore be considered on the merits as if no issue had been awarded, and the conclusions reached by the chancellor tested by the evidence. This evidence was chiefly oral. It is true that the same is conflicting, not an uncommon thing when one party affirms and the other denies, but the conflict is not of the usual character as when witnesses, present at the same time, give varying and contradictory accounts of the things that they have seen, or heard, or have had the opportunity to see, or hear. In the main the witnesses in the instant case were never present together. The witnesses for the commonwealth testify as to what they saw, or heard, in the establishment of the defendants. If credence...