Martin v. State ex rel. Eidson

• Decision Date: 12 August 1931
• Docket Number: No. 14226.,14226.
• Citation: 93 Ind.App. 26,177 N.E. 354
• Parties: MARTIN v. STATE ex rel. EIDSON.
• Court: Indiana Appellate Court

93 Ind.App. 26

177 N.E. 354

MARTIN

v.STATE ex rel. EIDSON.

No. 14226.

Appellate Court of Indiana, in Banc.

Aug. 12, 1931.

Appeal from Fulton Circuit Court; Hiram G. Miller, Judge.

Action by the State, on the relation of Jacob W. Eidson, against William Martin, to abate a nuisance. From a judgment for relator, defendant appeals.

Affirmed.

Logan & Kitch, of Plymouth, and W. J. Reed, of Knox, for appellant.

Jas. M. Ogden and Geo. W. Hufsmith, both of Indianapolis, for appellee.

NEAL, C. J.

This action was brought by the state of Indiana, on the relation of Jacob W. Eidson, against appellant, to abate a nuisance, under Acts 1925, c. 48, p. 144, §§ 24-26, §§ 2740-2742, Burns' Ann. St. 1926. Appellant filed demurrer to the complaint, which was overruled, and he then filed an answer in general denial and two additional paragraphs of answer, to which two paragraphs of answer appellee replied, thereby closing the issues in the case. The court made a special finding of facts and stated its conclusions of law thereon and rendered judgment in favor of appellee and against appellant, describing the premises of appellant to be a nuisance and ordering the nuisance abated, that he be required to give bond operative for one year, and that he pay the costs of the action, including attorney fees of appellee's attorney. Appellant's motion for new trial being overruled, this appeal was taken, appellant assigning as error: (1) Overruling demurrer to complaint; (2) error in each of the conclusions of law; (3) the court's action in sustaining appellee's motion to hear evidence as to the reasonable value of appellee's attorney fees in the prosecution of the action; (4) overruling motion for new trial, under which it is presented: (a) The decision of the court is not sustained by sufficient evidence; (b) the decision is contrary to law; (c) error in the admission and exclusion of certain evidence.

[1][2] No question is presented for our consideration as to the ruling on the demurrer, for the reason that appellant has failed to point out and discuss such question in the “Points and Authorities” portion of his brief. Under rule 22 of the Supreme and Appellate Courts, appellant is required to group his propositions under a separate heading for each error relied on, and it is not sufficient that he state propositions of law which are not applied to the assignments of error. Cleveland, etc., R. Co. v. Ritchey (1916) 185 Ind. 28, 111 N. E. 913;Baker v. Stehle (1918) 187 Ind. 468, 119 N. E. 4. For the same reason the questions as to the admission and exclusion of evidence are not presented, and, further, for the reason that appellant has failed to point out in his brief where the rulings thereon are to be found in the record. Ex parte McAdams (1925) 196 Ind. 184, 147 N. E. 764.

[3][4][5] The assignment of error that the court erred in sustaining appellee's motion to hear evidence as to the reasonable value of appellee's attorney fees is also waived. Appellant has directed no point to this alleged error in the “Points and Authorities” portion of his brief. Abstract propositions of law not directed or applied to a specific assignment of error will not be considered on appeal. Furthermore, neither this motion, nor a copy thereof, nor the rulings thereon, are set out in that portion of the brief denominated the “Record”; therefore no question on this motion is presented. Appellant is required to state so much of the record as fully presents every error and exception relied upon, referring to the pages and lines of the transcript. Rule 22 Supreme and Appellate Courts; Bruner v. State (1928) 201 Ind. 33, 164 N. E. 272.

This court, then, will consider only the remaining questions properly presented, viz.: (1) The decision of the court is not sustained by sufficient evidence and is contrary to law; (2) the conclusions of law are erroneous. We give appellant some benefit of doubt as to these questions, for some of the points here made merely abstract propositions of law not applied to any specific question of which complaint is made.

The findings of the court, in substance, are as follows: That for several years appellant occupied a part of a building in Plymouth, Ind., in which he operated a cigar store, pool room, and soft drink parlor; that for several years prior to June 30, 1928, appellant, in his place of business, manufactured a cider product composed of syrup, purchased from a certain fruit juice company, and water which appellant or his agents mixed in kegs, which product would be permitted to remain for a time in the keg in such a manner that it was open to the air, after which time a quantity of the product would be transferred from the basement, where it was mixed, to the first floor of the premises, where it was sold at 10 cents a glass; that the syrup so sold to appellant was boiled down cider and was represented by the company to be non-intoxicating; that on June 30, 1928, the sheriff of Marshall county, by virtue of a search warrant, searched the premises occupied by appellant and found a quantity of the product so manufactured for sale and removed a jar of such product containing approximately two gallons; that the product so removed was in fact intoxicating, containing as much or more than one-half per cent. of alcohol by volume, to wit, 4.61 per cent.; that after the search appellant received information that the cider product was found to contain more than the legal limit of alcohol, and not later than July 10, 1928, he returned the remaining syrup to the fruit juice company and poured out the cider product then on hand, and since that date has not manufactured or sold any of the cider product; that on and prior to June 30, 1928, the place of business of appellant sustained a reputation as being a place where intoxicating liquor was possessed and sold and where people resorted for the purpose of drinking intoxicating liquor; that prior to and since the date of the search men in an intoxicating condition have frequented the place of business of appellant, with knowledge and permission of appellant, and prior to and since the date of the search the appellant and his agents have, at sundry times, found and removed numerous empty bottles from the premises, which bottles were left there by divers persons; that appellant had intimate knowledge as to the conditions existing in his place of business, and he has not been diligent in preventing such conditions; that, following the search by the sheriff, a criminal proceeding was instituted against appellant for possession of intoxicating liquor; and that the cause of the cessation of the manufacture and sale of the cider product by appellant was due to the search of the premises.

Upon these findings, the court rendered its conclusions of law, in substance, as follows: That the law is with the appellee, and that the premises occupied by appellant are a common nuisance and appellee has no adequate remedy at law; that appellee is entitled to an order perpetually enjoining appellant from manufacturing, selling, bartering, giving away, furnishing, or otherwise disposing of intoxicating liquor on or in the premises occupied by him, and that he be further enjoined from permitting people to resort to the premises for the purpose of drinking intoxicating liquor; that appellant be required to give a bond in the sum of $1,000 to the state of Indiana, with surety approved, conditioned that for a period of one year he will not violate the order against him; that appellee have and recover from appellant the costs of this action taxed at $-. There was also a statement in the conclusions that, if appellant failed in giving the bond, the court would appoint a receiver, but, on motion of appellant, this statement was stricken out.

Appellant contends that, since it was shown the nuisance as to the sale of the cider product was abated by the appellant himself, there was nothing left to abate, hence the decision is not sustained by sufficient evidence, and it is therefore contrary to law. In considering this question it will be necessary to set forth some of the evidence.

Appellant testified, in answer to a question as to thinning down the cider before serving: “Oh, I might, take if a tight came in there, yes, sir, have fellows there tight and wanted cider, added water to it, didn't want to argue with them, gave it to them to please them,” and “We may have weakened it down some, some fellows come in tight, come in with bottles. I have taken bottles out back in there of the room, several of them, take the fellows I was speaking of last. I didn't want them drunk in there, weakened it down-maybe they would want a glass of water. I would be glad to give them that.” Further, in response to an inquiry concerning whether or not he had seen as many intoxicated there since the search, appellant stated: “I don't believe I have, there aren't as many bootleggers as there used to be, I know eight or ten bootleggers there. I remember eight or ten bootleggers since I have been there now I only know two or three, I can make it a little bit stronger.” As to the amount of cider sold, appellant said: “I sold quite a bit because I kept it on ice, lots of fellows liked cider as well as root beer. I could not tell you exactly I sold, oh I would say from six to seven gallon, maybe in one day.”

Ernest Conklin, employee of appellant, testified that he mixed the cider and water in a keg “with the bung in the barrel at the top of which was open part of the time and closed part of the time. We let it stand three or four days before selling any of it and we took it upstairs in gallon jugs.”

Adam Zehner, also an employee of appellant, said that, since June 30, 1928, the date of the search, he had seen intoxicated folks in there and they came in with different degrees of intoxication; that “either the heat after they came in or the drinking of liquor which they brought with them made them appear more intoxicated on...