Poss v. Norris

• Court: Georgia Supreme Court
• Citation: Poss v. Norris, 197 Ga. 513, 29 S.E.2d 705 (Ga. 1944)
• Decision Date: 05 April 1944
• Docket Number: 14780.
• Parties: POSS v. NORRIS, Sheriff, et al.

29 S.E.2d 705

197 Ga. 513

POSS v. NORRIS, Sheriff, et al.

No. 14780.

Supreme Court of Georgia

April 5, 1944

Syllabus by the Court.

1. The act approved March 29, 1937, Ga.L. 1937, p. 624, is not unconstitutional for any reason assigned.

2. Where L., by judgment of the court, had been permanently enjoined from operating any business in a structure, and the sheriff directed to padlock the same, and subsequently P purchased the structure and asked the court to modify the judgment and permit him to open it for the purpose of operating a legal business therein, and where the judge modified the judgment accordingly, and P. violated the terms of the judgment, as modified, by operating an illegal business therein, it was not error for the court to revoke the modified order and direct the sheriff to re-padlock the structure.

3. Under the facts set forth in the preceding headnote, it was proper for the court, after a rule nisi had been served, to hold P. in contempt.

In March, 1942, Hon. J. Cecil Davis, as solicitor-general, filed a petition against John Lamar Lokey seeking to abate as a common nuisance a structure known as 'John's Place' in McDuffie County, alleging it to be a 'blind tiger' under the Code, § 58-110. At the hearing on March 12, 1942, an interlocutory order was entered, restraining Lokey from continuing any business in the building until further order of the court, and directing the sheriff to close and padlock the structure. The case was brought to this court, and the judgment was affirmed on June 18, 1942. See Lokey v. Davis, 194 Ga. 175, 21 S.E.2d 69.

On September 16, 1942, the jury returned the following verdict: 'We, the jury, find in favor of the State;' and on September 19, 1942, a judgment was entered accordingly directing that the restraining order previously granted be made permanent.

In July, 1943, while this injunction was still in force, George Poss, the present plaintiff in error, filed with the judge of the superior court an affidavit alleging that he had 'purchased the said structure from said John Lamar Lokey and is now in possession of the same; and that he desires to rent or lease the said structure to another as a place of business and not for any illegal purposes whatsoever;' and asked that the court 'modify the injunction and restraining order against said John Lamar Lokey, and against said structure.' Thereupon the court granted the following order: 'It is hereby considered, ordered, and adjudged that the order referred to above be, and the same is hereby, modified, as requested so as to permit said owner of said property to rent or lease the same for the purpose or purposes stated in said oath, with the understanding that it is not to be used for any illegal purposes whatsoever, until further order of the court.' This order was passed on July 8, 1943, the same day on which the foregoing affidavit was presented to the judge.

Subsequently in November, 1943, L. J. Norris, the sheriff of McDuffie County, filed with the court an affidavit stating that George Poss, as owner, and F. D. Moseley, as co-owner, employee tenant, or lessee, were operating for profit and in violation of law (the above described structure) as a public dance hall, without taking out a license, and without securing permission to so operate from the ordinary of McDuffie County, as provided by Ga.L. 1937, p. 624.

The court then passed an order, reciting the facts above set forth and stating: 'It is therefore considered, ordered, and adjudged that the structure commonly known as John's Place, above described, be immediately padlocked by the sheriff of McDuffie County, Georgia, and that the said George Poss and the said F. D. Moseley show cause before me on the 13th day of November, 1943, at 10 o'clock a.m. (E.W.T.) in my office in Thomson, Georgia, why the modification of said injunction should not be revoked, and why said structure should not continue closed as directed under the original injunction dated the 12th day of March, 1942, and why they should not be adjudged in contempt of court in violation of the terms of said modifying order. Ordered further that this order be filed, and a copy of this order be served immediately upon the said George Poss and the said F. D. Moseley.'

At the hearing, George Poss filed a demurrer, alleging, among other things, that the proceeding was illegal, in that it amounted to a separate and distinct proceeding to padlock the premises, which could not be done by the sheriff, as movant, but only by a petition in the name of the solicitorgeneral; and further that it set forth no cause for contempt. The court overruled this demurrer. Upon the hearing of the issues on their merits the court found, and there was sufficient evidence so to do, that George Poss and F. D. Moseley were operating a dance hall in said structure in violation of law, and passed the following order: 'The above stated citation for contempt coming on for a hearing at the time and place previously ordered, and after evidence was submitted by all parties to this proceeding, it is considered, ordered and adjudged that the modifying order passed by the court in the above stated matter on the 8th day of July, 1943, and set out in the citation for contempt, has been violated by the said George Poss and the said F. D. Moseley, and they, the said George Poss and the said F. D. Moseley are adjudged to be in contempt of court in the violation of said modifying order. It is further ordered that the modifying order dated the 8th day of July, 1943, set out above, be revoked, and the original order in said case, dated the 19th day of September, 1942, ordering the structure and building, known as John's Place, set out in the original petition and described therein, closed and padlocked by the sheriff of McDuffie County, Georgia, shall continue in force until the further order of the court. Ordered further, that the said George Poss and the said F. D. Moseley, may purge themselves of contempt by paying $20.50 court cost of this proceeding. In open court, this is the 20th day of November, 1943.'

To the order overruling the demurrer, and to the judgment last above quoted, which revoked the modifying order of July 8, 1943, and continued in force the original order of March 12, 1942, error is assigned. In the bill of exceptions, J. Cecil Davis, solicitor-general, is made a party defendant jointly with L. J. Norris, sheriff.

Pierce Bros. of Augusta, for plaintiff in error.

J. Cecil Davis, Sol. Gen., of Warrenson, for defendants in error.

ATKINSON, Justice (after stating the foregoing facts).

The plaintiff in error contends that the affidavit of the sheriff, filed with the judge in November, 1943, was no part of the proceedings which had previously been instituted against Lokey, but that it was a separate and distinct action, and could not proceed at the instance and in the name of the sheriff, because a proceeding to abate a public nuisance must be brought in the name of the solicitor-general. The State, as defendant in error, insists that the act of the sheriff, in filing an affidavit setting forth that the plaintiff in error was violating the order of the court by operating a dance hall in violation of law, was not the institution of an action to abate the dance hall as a nuisance; but was merely...