Simpson v. District Court of Ward County, Fifth Judicial Dist., 7179
| Decision Date | 08 April 1950 |
| Docket Number | No. 7179,7179 |
| Citation | 42 N.W.2d 213,77 N.D. 189 |
| Parties | . et al. Supreme Court of North Dakota |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Sections 42-0203 and 42-0204, R.C.1943 which provide for the abatement of a bawdy house nuisance do not authorize the taking possession of and closing a dwelling house used in keeping and maintaining such nuisance until it is found upon the judgment of a jury, court, or judge having jurisdiction to be a common nuisance.
2. A human habitation is not a nuisance per se. To be a nuisance it must have become inherently dangerous or subjected to some harmful or illegal use and can be treated as a nuisance only after it is adjudicated to be such. State ex rel. Harigstad v. McCray, 48 N.D. 625, 186 N.W. 280, 22 A.L.R. 530.
3. The issuance of a writ of seizure directing the taking possession of and closing a dwelling house alleged to be used in keeping and maintaining a bawdy house nuisance prior to the rendition of a judgment adjudicating the same to be such a nuisance is contrary to law and constitutes a violation of the occupant's rights in that it directs the taking of property without due process of law and violates the security of his house by directing an unreasonable seizure of the same.
Paul Campbell, of Minot, for petitioner.
H. L. Halvorson, Jr., States Attorney of Ward County, of Minot, for respondents.
On November 30, 1949, acting pursuant to the provisions of Section 42-0201 et seq RCND 1943, H. L. Halvorson, Jr., the States Attorney of Ward County brought an action in the name of the State of North Dakota against Margaret Simpson, hereinafter referred to as the petitioner, to abate a common nuisance. Section 12-2228, RCND 1943.
The complaint in that action, verified by the States Attorney on information and belief, alleged that the petitioner used and occupied a building on a lot in the City of Minot, in which she kept and maintained a house of prostitution, commonly known as a bawdy house; that the same was a common nuisance whereby the peace, quiet, and decency of the neighborhood were habitually disturbed.
The relief prayed was that the premises in question be adjudged a common nuisance and abated as such; that a temporary injunction be issued enjoining the petitioner until further order of the court from occupying and keeping the premises as such common nuisance; and for such other and further relief as might be just.
The summons and complaint were presented to the judge of the District Court in and for Ward County accompanied by the affidavit of the States Attorney made upon information and belief setting forth facts substantially as stated in the complaint together with an application predicated on the affidavit for an order directed to the petitioner to show cause why a warrant should not be issued directed to the Sheriff of Ward County to shut up and abate said premises until such time as the action should be tried and determined upon its merits or until the further order of the court. The court thereupon issued an order temporarily enjoining the petitioner as prayed in the complaint and also issued an order to show cause pursuant to the application made therefor.
On November 30, 1949, service was made on the petitioner of the summons, complaint, temporary injunction, affidavit, application for order to show cause, and order issued pursuant thereto.
On December 3rd, the day on which the order to show cause was returnable, petitioner made her return denying the matters and things set forth in the affidavit for the order to show cause and alleging that for a long time theretofore the premises in question had been occupied by her as a home and dwelling house and that there had been no use or occupation thereof such as to constitute the same a common nuisance. She also objected to and challenged the jurisdiction of the court and the validity of the order to show cause, and of the proceedings leading up to the issuance of the order, on the grounds that the same were unconstitutional and void in that they were intended to and would deprive the petitioner of her property without due process of law and would violate the security of the petitioner in her house by an unreasonable seizure thereof.
The court overruled the objection and challenge interposed by the petitioner and proceeded to take proofs offered by the States Attorney in support of the application and affidavit on which the order to show cause was issued. The petitioner, standing on her challenge and objection, offered no testimony. The court found that the premises constituted a common nuisance and issued an 'injunctional warrant' ordering the Sheriff of Ward County 'to shut up and abate the premises by padlocking the...
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