Lawer v. Mitts

• Decision Date: 28 July 1925
• Docket Number: 1146
• Citation: 238 P. 654,33 Wyo. 249
• Parties: LAWER v. MITTS [*]
• Court: Wyoming Supreme Court

238 P. 654

33 Wyo. 249

LAWER v. MITTS ^[*]

No. 1146

Supreme Court of Wyoming

July 28, 1925

APPEAL from District Court, Fremont County; CYRUS O. BROWN, Judge.

Action by H. C. Lawer against W. M. Mitts to recover damages for the closing of plaintiff's premises under an abatement against defendant for maintaining a nuisance while occupying the premises as a tenant.

Affirmed.

M. C Burk for appellant.

Plaintiff and defendant were jointly adjudged guilty of maintaining a nuisance and that judgment is res adjudicata; Holmes v U.S. 12 A. L. R. 427; Martin v. Blattner, 25 N.W. 131; knowledge of the owner is presumed; People v Barbiere, 166 P. 812; People v. Cassa Co., 169 P. 454; Ten. House Dept. v. McDevitt, 109 N.E. 88; where the only purpose of the action is to abate the nuisance, knowledge of the owner is immaterial; Gregg v. People, 176 P. 483; defendant was a tenant by sufferance; 4621-4622 C. S.; the abatement statute is void; McLeran v. Benton, 14 P. 879; plaintiff was equally responsible for the nuisance and has no standing as against defendant.

Bryant S. Cromer for respondent.

The judgment is not conclusive except as to matters litigated; 15 R. C. L. 977; Smith v. Brunswick, 80 Me. 109; the abatement order was rendered in a proceeding brought under Chap. 87, Laws of 1921. There can be no intent without knowledge. The statute is directed at the nuisance and those actually maintaining it, whether owners or tenants. The judgment against the owner is in rem and not in personam; a tenant by sufferance is liable the same as a tenant under a term; the owner was without knowledge of the tenant's unlawful acts. The constitutionality of the Act cannot be raised for the first time on appeal; 8 Cyc. 800; 3 C. J. 711.

M. C. Burk in reply.

Plaintiff was jointly liable and cannot maintain this action; 26 R. C. L. 757; Wabash Co. v. Locke, 14 N.E. 391; 15 R. C. L. 976; Holmes v. U.S. 12 A. L. R. 427; intent may be inferred from circumstances; 7 Ency. of Ev. 605; the constitutional question was sufficiently raised in the trial court by defendant's demurrer to the petition; 6 R. C. L. 96; and it may be raised the first time on appeal; 3 C. J. 710; Adkins v. Richmond, 81 Am. St. Rep. 705; 47 L. R. A. 583; Primeau v. Grandfeldt, 193 F. 911; Mass. Bank v. Shinn, 57 N.E. 611.

POTTER, Chief Justice. KIMBALL, J. and TIDBALL, D. J., concur. BLUME, J., did not sit.

OPINION

POTTER, Chief Justice.

This case is here on direct appeal from the district court sitting in and for Fremont County, to review a judgment rendered upon a trial without a jury, in an action brought by the owner of a building in the town of Riverton in said county to recover from the defendant an amount claimed as damages because of the closing of a basement room in said building which had been rented by plaintiff to defendant, under a court order for the abatement of a nuisance declared in consequence of the possession and sale of intoxicating liquor by the defendant in said room.

The petition alleges in substance that the plaintiff was the owner of said building and entitled at all times mentioned therein to its possession and rental. That defendant was, on June 1, 1921, and "for some months prior thereto," the plaintiff's tenant, renting the east basement room, and conducting therein a pool hall, bowling alley and soft drink parlor, and was paying the plaintiff as rent the sum of $ 65 per month. That the said rented premises was of the reasonable rental value of said $ 65 per month, and had been rented to defendant for the purpose of conducting a lawful business therein. That on May 11, 1921, and for several months prior and subsequent thereto, while defendant was such tenant, notably on May 16, 22 and 25, without the knowledge or consent of plaintiff, he "used, occupied, managed, controlled and maintained" said premises for the purpose of keeping and storing therein intoxicating liquor in violation of law, and for the purpose of selling, exchanging, bartering, exposing and keeping for sale therein intoxicating liquor in violation of the laws of the state. That in consequence thereof, an action was brought by the county attorney against defendant and plaintiff in said district court, alleging that defendant's business constituted a nuisance under the law and praying that the premises be closed and that the defendant Mitts (the defendant here) be enjoined from moving therefrom the personal property used in his said business during the pendency of the action, and that on the final hearing the injunction be made permanent and the nuisance abated. That upon a preliminary hearing, an order was duly made and entered by the court on June 3, 1921 "that said premises be closed and locked and that the sheriff take possession thereof until the final determination of the action; and that pursuant thereto the sheriff did take possession of and properly locked the premises." That the final hearing was had on July 27, 1921, at which time the court, by an order duly made and entered, made said temporary injunction permanent and adjudged the business of the defendant Mitts a nuisance and ordered the same abated. That pursuant thereto the sheriff retained possession of said rented premises and property and kept the same locked and closed until December 3, 1921, at which time, upon the application of plaintiff, the said district court entered an order permitting the plaintiff to open up the premises and use the same, thereby restoring him to the use thereof and income therefrom. That by reason of said unlawful and wrongful acts of defendant, plaintiff was deprived of the use, occupancy and revenue of said premises from June 3, 1921 to December 3, 1921, and defendant has refused and still refuses to pay the rental value thereof, thereby damaging the plaintiff in the sum of $ 404.30, including interest at the legal rate from December 1, 1921. That by reason also of said unlawful acts of defendant, the county, through its proper officers, has assessed against said property a fine of $ 300, which plaintiff has been compelled to pay, and that thereby he has been damaged in that additional amount, and also in a further additional sum of $ 250, the expense of employing counsel in the same abatement action. Judgment was demanded in the sum of $ 954.30, together with interest.

A demurrer to the petition having been overruled, an answer was filed alleging some new matters later to be referred to, also a reply denying such new matter, and the cause went to trial, resulting in a judgment in favor of the plaintiff in the sum of $ 410.37, allowed as the reasonable rental value of the premises during the period that the premises were closed, at the rate of $ 65 per month. The evidence did not show plaintiff's payment of the alleged fine or penalty, but, on the contrary, showed that it had not been paid.

The record shows that upon the trial all the files in the abatement suit were identified by the clerk of the court called as a witness for that purpose on behalf of the plaintiff, and offered and received in evidence, and at that point in the transcript of the testimony reference is made to plaintiff's "Exhibit AA," as seemingly intended to refer to said files, but the same are not attached to said transcript, nor is any such exhibit in the record here. Therefore all we may know about the facts of that proceeding is what is to be found in the pleadings. We have stated the averments of the petition concerning that proceeding. The answer avers that in said proceeding plaintiff and defendant were sued jointly, that it was found therein that a nuisance was being maintained on the premises occupied by the defendant, and that by reason thereof said premises were ordered closed. By said answer also the defendant admits expressly that the sheriff took possession of said premises and locked the same and kept the same in his possession from on or about June 3, 1921 until on or about December 3, 1921, and that during said time the defendant did not pay any rentals on said property to plaintiff; but he denies that a fine or assessment of $ 300 or any other sum was levied upon or against the property of plaintiff, and denies that plaintiff had to pay that or any other sum to procure the premises released, and denies that plaintiff was compelled to employ counsel and to pay therefor the alleged sum of $ 200 or any other sum "on account of any act or thing done by this defendant." Thus the fact of the abatement proceeding and the closing of the premises under an order entered therein and the cause or reason for said proceeding and closing order, and the act of the sheriff thereunder sufficiently appear from the pleadings.

But it does not directly appear whether the proceeding was brought and determined under the provision of Chapter 87, Laws of 1921, which declares to be a nuisance any building or place used for the purpose of lewdness, prostitution or gambling or for keeping, maintaining, manufacturing, selling, or exchanging, etc., any intoxicating liquor with intent to violate any law of the State, as well as the furniture, fixtures, and devices therein; and that whoever shall erect, establish, maintain, use, own or lease any such building or place is guilty of a nuisance; and provides for the abatement thereof in the name of the state; or whether it was brought under somewhat similar provisions in Chapter 117 of the laws of the same year--the liquor prohibition law--which is a substantial copy of the provisions of the so-called National Volstead Act, U.S. Comp. St. Am. Supp. 1923; Sec. 10138 1/4 et seq. Counsel for plaintiff refers indirectly to the proceedings as having been brought under Chapter 87, by quoting provisions of that Chapter in his brief, and it may be assumed that it was, though...