Kuchler v. Weaver
| Decision Date | 09 March 1909 |
| Parties | KUCHLER et al. v. WEAVER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An order modifying a temporary injunction, or such interlocutory order, is not res judicata, even after it is affirmed by the appellate court, but the whole subject-matter may be retried and reviewed on the final hearing of the case.
[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. § 4661; Dec. Dig. § 1195. [*]]
Permission to file amendatory pleadings rests largely within the discretion of the trial court; and, unless there is a clear abuse of that discretion, its ruling will not be disturbed.
2a. The plaintiff having attempted to plead a cause of action under sections 624, 626 (chapter 13, art. 10, §§ 134, 136) Wilson's Rev. & Ann. St. 1903, but failing to allege under the requirements of section 626, that he was the owner of lots within the corporate limits of such city, or within such addition; he having also pleaded in his petition facts constituting a cause of action under the common law, so as to entitle him to an injunction to abate a nuisance; the trial court having modified the temporary injunction so as not to allow him all the relief prayed for, and to which he would have been entitled had he not defectively stated his cause of action under the purview of said sections 624 and 626, and having appealed same to the Supreme Court of the territory of Oklahoma, where it was affirmed-before final trial in the lower court it was within the discretion of the trial court to permit him to amend his original petition so as to bring such cause of action, as it appears from the pleadings it was so intended, within the purview of section 626, supra.
[Ed Note.-For other cases, see Pleading, Cent. Dig. § 601; Dec Dig. § 236; [*] Appeal and Error, Cent. Dig. § 3825; Dec. Dig. § 959. [*]]
The defendants having failed to particularize and specify the matters and facts supposed to constitute each separate and distinct cause of action, so that the court might act intelligently thereon, and having admitted in their answer the facts as alleged in the amended petition, entitling the plaintiff to the relief prayed for, the action of the trial court in overruling the motion to separate the different causes of action, and number same, will not be disturbed.
[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. § 4075; Dec. Dig. § 1039. [*]]
Sections 624, 626, Wilson's Rev. & Ann. St. 1903 (article 11, c. 15, St. Okl. 1893), were not repealed by section 4, c. 7, p. 107, Sess. Laws 1903.
[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 230; Dec. Dig. § 161. [*] ]
Section 624, Wilson's Rev. & Ann. St. 1903 prohibiting the maintenance of a slaughterhouse within one-half mile of the corporate limits of a city of the first class, etc., is a legitimate exercise of the police power upon the part of the Legislature.
[Ed. Note.-For other cases, see Health, Cent. Dig. § 25; Dec. Dig. § 21.[*] ]
Error from District Court, Kay County.
Action by John F. Weaver against Henry Kuchler and another. Judgment for plaintiff, and defendants brought error to the Supreme Court of the territory of Oklahoma, whence the cause was transferred to the Supreme Court of the state of Oklahoma. Affirmed.
A special act will not be presumed to have been repealed by a general act.
In the fall of 1900, the plaintiffs in error leased 3 acres of land in the S. 1/2 of the S.E. 1/4 of the N.E. 1/4 of section 22, township 28 N., range 2 E., of the Indian Meridian, in Kay county, Okl. T., and located a slaughterhouse thereon, and used it continuously for that purpose until restrained by a temporary writ, issued in a certain action instituted in the district court of Kay county, Okl. T., on the 25th day of October, 1905, by John Weaver, as plaintiff, the defendant in error in this court, against Henry Kuchler and Amelia Kuchler, as defendants, the plaintiffs in error in this court. In the fall of 1905 said defendants purchased 20 acres of land, including said 3 acres, for the purpose of having a suitable place to feed and keep their live stock in conjunction with their slaughterhouse the location of which was within less than half a mile from the corporate limits of the city of Newkirk, and of a tract of land platted into lots and blocks as College addition to said city, and within less than half a mile of lands platted to be sold as residence lots, and which were actually sold for that purpose.
The plaintiff resided with his family about three-eighths of a mile from the defendants' slaughterhouse on the S.E. 1/4 of section 27, township 28 N., range 2 E., of the Indian Meridian, a tract contiguous to defendants' 20 acres, and outside the corporate limits of the city of Newkirk and its additions. A creek, called Spring creek, ran through and across the premises of both parties, the plaintiff's dwelling house being downstream from the defendants' slaughterhouse, and situated about 20 rods back from the creek. Near the dwelling house is a spring, from which plaintiff and his family procured their water for family purposes. Plaintiff averred the location of defendants' slaughterhouse to be within less than half a mile from the corporate limits of the city of Newkirk, and from a tract of land platted into lots, etc., and of special injury to himself, in that defendants permitted to remain upon the premises, in and near the slaughterhouse and creek, the offal, refuse, and unsalable portions of the animals slaughtered, a part of which, through the creek, becomes scattered over and upon his premises, causing the water in the spring to become unwholesome and unfit for use, and that the decay and decomposition on the premises of both parties creates a foul, unwholesome stench and odor around his dwelling house, endangering the health of plaintiff and his family.
A permanent injunction against the defendants from using their premises for slaughterhouse purposes was prayed for, and a temporary restraining order issued out of the probate court of Kay county on the 25th day of October, 1905, the date of the filing of the petition in said action in the district court. On the 20th day of November, 1905, the defendants filed their answer, which contained a general denial; also a demurrer to that part of plaintiff's petition alleging the location of defendants' slaughterhouse to be within less than half a mile from the corporate limits of the city of Newkirk and its additions. On the 26th day of November, 1905, the defendants filed a motion to dissolve the temporary writ, upon the grounds as set forth in their answer, which was attached to and made a part of said motion. A partial hearing was had on the 1st day of December, 1905, and both parties ordered to submit additional evidence in the form of affidavits. On the 30th day of December, 1905, the matter came on for final hearing, and the court rendered judgment modifying the temporary order issued, and permitting the defendants to operate their slaughterhouse, but enjoining them from permitting any offal, refuse, or unsalable matter of said business in any manner to be conducted into the stream running through the defendants' slaughterhouse yard, and enjoining said defendants, their agents, and employés, from permitting any offal or refuse matter to accumulate in, about, or near the said slaughterhouse premises, and from permitting any bones, carcasses, or other objectionable matter resulting from the slaughter of cattle and hogs at said slaughterhouse to remain and decay upon any part of said slaughterhouse premises.
From the judgment modifying the temporary order the plaintiff appealed to the Supreme Court of the territory of Oklahoma, and on the 5th day of September, 1906, the order of the trial court permitting the defendants to conduct and operate their slaughterhouse, but restraining them from such usage as to create a nuisance to the plaintiff or the public, was affirmed on the ground that it was not averred that the plaintiff was the owner of any real estate, as required by sections 624, 626, Wilson's Rev. & Ann. St. 1903 (chapter 15, art. 11, §§ 1, 3, St. 1893), and therefore did not bring himself within the provisions of said chapter in order to have such nuisance as was declared against therein abated, it being provided in said sections that "it shall be unlawful for any person to maintain a slaughterhouse within less than one-half mile of any tract of land platted into lots and blocks as an addition to any town or city within the territory of Oklahoma, or to maintain such slaughterhouse within one-half mile of any tract of land platted into acre tracts for the purpose of being sold for residence and in which tracts of land have actually been sold for residence purposes," and that the maintaining of any slaughterhouse in violation of the provisions of said act is declared to be a nuisance, and any person owning real estate within any such addition, or within lands platted and set apart to be sold for residence purposes, may maintain an action in the courts to abate such nuisance, and to enjoin its continuance. Weaver v. Kuchler, 17 Okl. 189, 87 P. 600.
On the 28th day of September, A. D. 1906, after the Supreme Court had affirmed said judgment, the plaintiff made application to the district court for leave to file an amended petition in said cause, which was granted, a portion of said order being in words and figures as follows: "This cause came on for hearing on application of the plaintiff for leave to file an amended petition herein, setting forth in said amended petition that the plaintiff was, at the time of the bringing of the action and the filing of his original petition, the owner of lots eleven (11), twelve (12), and thirteen (13) in block eight (8...
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