Kissel v. Lewis

• Decision Date: 22 February 1901
• Docket Number: 18,976
• Parties: Kissel v. Lewis
• Court: Indiana Supreme Court

59 N.E. 478

156 Ind. 233

Kissel v. Lewis

No. 18,976

Supreme Court of Indiana

February 22, 1901

From the Hamilton Circuit Court.

Affirmed.

J. O Spahr and F. W. Ballenger, for appellant.

Eli F Ritter, for appellee.

OPINION

Dowling, C. J.

Suit by appellee against appellant to enjoin the maintenance by the appellant of a disorderly beer-garden in the vicinity of the residence of the appellee. Objections to the appointment and jurisdiction of the special judge overruled. Demurrer to the plea to the jurisdiction of special judge sustained. Demurrer to complaint overruled. Answer in two paragraphs, the first being a general denial. Demurrer to second paragraph of answer sustained. Special finding of facts, with conclusions of law in favor of appellee. Exceptions by appellant to first, third, and fourth conclusions of law. Motions by appellant to strike out portions of conclusions of law, to modify and restate fourth conclusion, to modify judgment, and for a new trial, overruled. Cross-errors are assigned by appellee upon the refusal of the court to modify the conclusions of law, and judgment upon the motion of the appellee.

This action was brought in the Marion Circuit Court, and upon the application of the appellant for a change of venue it was sent to the Hamilton Circuit Court. In that court the appellant moved for a change of judge. The motion was granted, and Mr. S. L. Baldwin was appointed to try the case, but failed to attend. The judge of the Hamilton Circuit Court thereupon, over the objection of the appellant, appointed Mr. Ira W. Christian, a competent and disinterested attorney of this State, in good standing, who consented to serve, and was duly qualified as other judges, his appointment and oath being entered on the order-book. The grounds of objection to the appointment and jurisdiction of Mr. Christian, as presented by appellant's motion and plea, were, that his name, with those of two other attorneys, had previously been submitted by the judge of the Hamilton Circuit Court to the parties, and that the appellant had then stricken it from the list. When the motion and affidavit for a change of judge were filed, it became the duty of the judge of the Hamilton Circuit Court to appoint a special judge to try the cause. If, in his opinion, it would be difficult to procure the attendance of a judge of another court, it was proper for him to appoint any competent and disinterested attorney in this State in good standing to act as judge in the cause. The appointment was wholly in the discretion of the regular judge, and he was not required to consult, or to conform to, the wishes of the parties in making his selection. The suggestion of the names of several competent attorneys by the regular judge, with the request that the parties strike off one or more of them, was an act of courtesy merely, from which the parties derived no right to object to any appointment the regular judge afterwards saw fit to make. § 419 Burns 1894; Walter v. Walter, 117 Ind. 247, 20 N.E. 148; Chissom v. Barbour, 100 Ind. 1. Section 4 of the act approved March 7, 1877 (Acts 1877, p. 28), § 1446 Burns 1894, was repealed by § 415 of the act of 1881 (Acts 1881, p. 240), and at the time of the appointment of the special judge in this case there was no statute in force requiring the judge to submit to the parties the names of the attorneys from whom the appointment was to be made. Kane v. State, 71 Ind. 559; Walter v. Walter, 117 Ind. 247, 20 N.E. 148; Hauk v. State, 148 Ind. 238, 249, 46 N.E. 127. The objections to the appointment of the special judge were properly overruled, and the plea to his jurisdiction was correctly sustained.

The complaint stated, in substance, that the plaintiff below was the owner of lots eighteen and nineteen in Cleveland Park Place addition to the city of Indianapolis, designated as number 2,520, situated on the west side of Capitol avenue, a short distance from Twenty-sixth street; that on said premises the plaintiff has a house, of nine rooms, well finished, and in good condition, which is occupied by him and by his family, consisting of his wife, two sons, and two daughters, the oldest of said children being seventeen years of age, and the youngest five years; that the said house is situated in a locality thickly settled, and devoted to residence purposes, and that the people of the neighborhood are orderly, intelligent, and of high character for morality and sobriety; that the defendant was the owner of real estate in said city of Indianapolis, situated on the southeast corner of Twenty-sixth street and Capitol avenue, extending along the east side of said Capitol avenue about 150 feet south from the line of Twenty-sixth street, and along the south line of Twenty-sixth street about 200 feet east from the line of Capitol avenue, said premises being on the opposite side of Capitol avenue from plaintiff's residence, and the south line thereof being about fifty feet north of said residence; that on the northeast (west) corner of defendant's real estate, and directly on the line of the sidewalks on said Twenty-sixth street and Capitol avenue defendant has erected a large building, two stories in height, about forty feet in width, and seventy feet in length, having a double veranda and entrance on Capitol avenue, and four side entrances on Twenty-sixth street, and containing fifteen rooms; that upon the top of said building is a tower about fifty feet high from the ground, around which are fifty electric lamps in three circles, one above the other; that upon the first floor of the said building, and in the northwest corner thereof, is a room used as a saloon and bar-room in which intoxicating liquors are sold and drunk; and that most of the other rooms in the said buildings are arranged for the accommodation of men and women who indulge therein in the drinking of intoxicating liquors and in lascivious conduct; that to the south of the said buildings, and running east from said Capitol avenue about 125 feet, and south from said buildings about seventy-five feet, is a yard adapted, arranged, and used as a beer-garden; that said beer-garden is laid out in grass plats and walks, and at various places are seats, tables, and summer-houses; that across the entire east end of said real estate, occupying a space about forty feet wide, is a large number of stalls for horses and vehicles, together with hitching posts for horses; and that in the northeast corner of said real estate is an entrance for horses, vehicles, and pedestrians into the said grounds, through a double gate, twenty feet wide, spanned overhead by an arch studded with electric lights; that the defendant invites the public upon the said premises and extensively advertises the same as a resort; that the said premises are kept open by the defendant at all times in the day, and at all hours of the night, and upon every day in the week, including Sundays; that in response to the invitation and advertisement of the defendant, great crowds of people congregate upon said premises on all days and nights of the week, said crowds consisting of both men and women, who are lascivious and depraved, many of the women being prostitutes; that such crowds are larger on Sundays than on other days, more than 1,000 people often congregating there at the same time; that, especially on Sundays and at night, people are constantly entering into and departing from, said premises; that the defendant causes music to be furnished on said premises by a brass band, and by other musical instruments; that the visitors at said resort purchase from the defendant, and drink, great quantities of intoxicating liquors at all hours of the day and night, and on all days of the week, in the bar-room, in the other rooms of said building, in the yard, and in the summer houses, in violation of law; that many of the persons visiting said resort become intoxicated there, and while in that condition, on said premises, and while departing therefrom, indulge in loud talking, in profane and obscene language and conduct, singing, quarreling, fighting, and dancing, continuing late into the night, and until the early hours of the morning; that many of the persons visiting said premises on foot, in vehicles, and on bicycles, in going and coming, pass immediately in front of plaintiff's residence on Capitol avenue, and especially at night by loud talking and shouting, and by the use of vile, profane, and obscene language, deprive the plaintiff and his family of sleep, keeping them in constant fear and dread of injury, to the annoyance and disturbance of the plaintiff and the members of his family; that the grievances herein described have been committed and maintained by the defendant for ten years past, whereby the plaintiff and his family have been greatly annoyed, disturbed, mortified, and damaged. That the manner in which said resort and beer-garden is carried on has rendered it notorious throughout the city of Indianapolis and elsewhere throughout the State, and has given to the said neighborhood and locality, including plaintiff's residence, a bad reputation and character, and has created a prejudice against the same, and has thereby destroyed the rental value of the plaintiff's property for residence purposes, and the enjoyment of the plaintiff in the same as a homestead. That the defendant has secured from the board of commissioners of Marion county, Indiana, a document called a license, which he claims authorizes him to sell intoxicating liquors on the said premises, but that the same is void because the act of the legislature of the State of Indiana, entitled "An act to regulate and license the sale of spirituous, vinous and malt liquors," etc., approved March 17, 1875 (Acts 1875, s. s. p. 55),...