Grossman v. United States

• Decision Date: 07 February 1922
• Docket Number: 2991,2992,2930.
• Citation: 280 F. 683
• Parties: GROSSMAN v. UNITED STATES ex rel. BRUNDAGE. SAME v. FRANK et al. SAME v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

280 F. 683

GROSSMAN v. UNITED STATES ex rel. BRUNDAGE. SAME v. FRANK et al.

SAME v. UNITED STATES.

Nos. 2991, 2992, 2930.

United States Court of Appeals, Seventh Circuit.

February 7, 1922

Cameron Latter, of Chicago, Ill., for appellant and plaintiff in error.

C. W Middlekauff and Jacob J. Grossman, both of Chicago, Ill., for appellee and defendant in error.

Before ALSCHULER and EVANS, Circuit Judges.

EVANS Circuit Judge.

The foregoing two appeals in 2991 and 2992 and the writ of error in 2930 can well be determined in one opinion. In No. 2930 plaintiff in error attacks a judgment pronounced against him in a contempt proceeding arising out of his alleged failure to obey the order of the court made in an equity suit to abate a nuisance. Nos. 2991 and 2992 are appeals from decrees rendered in such equity suit.

The decree thus entered is attacked: (a) Because of the relief accorded appellee the United States, the complainant in the District Court (No. 2991); and (b) because of the relief given the codefendants, Frank and Garmany (No. 2992), the owners of the premises. No assignment of error is presented in No. 2991 that was not determined adversely to appellant by the opinions in Lewinsohn v. U.S. (C.C.A.) 278 F 421, and Allen v. U.S. (C.C.A.) 278 F. 429, and further discussion thereof is unnecessary.

As to the relief in favor of the codefendants, the owners of the property, it is urged that error was committed because the cross-complaint was insufficient to support the decree. The court found and decreed:

'And it is also found by the court that the cross-complainants named were not participators in the acts constituting such nuisance, and are the owners of the property described that said Grossman was and is tenant holding under the lease described in the cross-bill and pleadings. * * * And it is further ordered that the lease heretofore held by said Grossman be delivered by the said Grossman to the said cross-complainants, Milton R. Frank, Seymour J. Frank and Perle Kemp-Garmany, to be canceled.'

That the evidence supported the finding cannot be questioned. The issue is therefore limited to the contention that the cross-bill did not justify the entry of the decree.

Much confusion might be avoided if counsel recognized that federal courts possessed and exercised equity jurisdiction long before the passage of the National Prohibition Act (41 Stat. 305). To illustrate: It needed no act of Congress to confer jurisdiction upon a court of equity to abate nuisances and to restrain individuals from maintaining them. Nor did it require an enabling act that a court might punish those who violated its restraining order. Likewise the equity rules applicable to federal court practice apply in all equity suits, including those brought under the National Prohibition Act, unless some contrary provision may be found in the act.

In this suit the owners of the premises were made defendants in the equity suit along with the tenant, who, it was charged, was maintaining a nuisance on the leased premises. Not only did the complainant pray that the nuisance be abated, but it also sought to close the premises for the period of a year. To the granting of this last sought relief the landlords were opposed. They pleaded their ignorance of the actions and conduct of the tenant and the conditions existing in the leased premises. They set forth all of the facts showing ownership, lease, etc., and further alleged that, if the tenant was maintaining a nuisance or disobeying any injunctional order of the court, they desired the lease canceled. In their prayer for relief they asked 'that the lease may be canceled and declared forfeited as against said Grossman. ' They also offered, in case appellant's lease was terminated, to give complainant a bond conditional upon their next tenant's respecting the law and conducting a lawful and orderly business in the premises. To this cross-complaint appellant Grossman answered fully. The last clause of section 23 of the National Prohibition Act provides:

'Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of

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