State ex rel. Bergland v. Bradley
| Decision Date | 03 January 1951 |
| Docket Number | No. 8993,8993 |
| Parties | STATE ex rel. BERGLAND et al. v. BRADLEY. |
| Court | Montana Supreme Court |
Sherman W. Smith, Lloyd J. Skedd, Helena, for appellant.
Brattin & Habedank, Sidney, for respondent.
W. W. LESSLEY, District Judge (sitting in place of BOTTOMLY, J., disqualified).
This is an appeal from a district court order and decree adjudging a certain building a public nuisance, ordering its abatement and adjudging the owner and occupant, Mrs. Eloise M. Bradley, locally known as 'Sally,' guilty of contempt for violating the terms of the temporary injunction theretofore issued.
A chronological resume of the pleadings and procedure that occurred in the lower court will make clear the one issue presented here on this appeal.
A complaint was filed on November 12, 1949; its allegations are on information and belief and its verification is in the usual form prescribed by R.C.M.1947, Sec. 93-3702. On the same day, the judge signed an order to show cause for November 19, 1949, and issued a temporary injunction restraining defendant or any other person occupying the premises from maintaining or permitting said nuisance and from removing fixtures, etc. from said premises. Again, on the same date, November 12, 1949, the judge disqualified himself and called in the Honorable David N. Nyquist, judge of the fifteenth judicial district, to hear, try and determine the proceeding. At the request of defendant's counsel, the hearing on the order to show cause was continued to November 28, 1949. On November 25, 1949, defendant interposed a general demurrer to the plaintiff's complaint. On November 28, 1949, defendant filed a motion to dissolve the temporary restraining order but not to quash the order to show cause. The defendant's demurrer to the complaint was submitted without argument and overruled and the motion to dissolve was argued and overruled. Defendant filed no answer nor did she request time for so doing. At the hearing on the order to show cause after a number of witnesses had testified on behalf of plaintiffs and been subjected to cross-examination by defendant's counsel, the latter asked to be excused, left the court room and declined to participate further in the proceeding. The taking of proof, however, continued and only ceased when the court became satisfied as to the sufficiency of the proof submitted on the order to show cause.
It would serve no useful purpose to consider the arguments advanced by defendant in support of each of her eleven specifications of error for as a matter of fact, her argument centers around the one question which we here decide. To answer that is to dispose of the case.
The material issue in controversy is: Was the district court without jurisdiction to issue the temporary restraining order.
The temporary restraining order was granted by the court ex parte upon the filing and reading of plaintiffs' verified complaint. The complaint recites:
That the relators were citizens of the United States and residents and citizens of Dawson county, state of Montana;
That the relators are informed and believe and therefore allege that on the 11th day of November, 1949, and for many months prior thereto the defendant above named, Mrs. Eloise M. Bradley, has been the record owner of certain described property upon which there is situate a building;
'That said plaintiffs are informed and believe and therefore allege that on the 11th day of November, 1949, and for many months prior thereto, the said building located upon said above-described premises has been and now is used for the purpose of lewdness, assignation, or prostitution, and has been and now is maintained as a place wherein acts of lewdness, assignation, or prostitution are held or occur, all of which is contrary to the form, force, and effect of the statutes and laws of the State of Montana, and against the peace and dignity of the State of Montana; and that said premises constitute a public nuisance and one which under the laws of the State of Montana shall be enjoined, abated, and prevented. * * *
'That plaintiffs are informed and believe and therefore allege that the defendant above named, Mrs. Eloise M. Bradley is the owner, or lessee, or agent of the building or place in and upon which such nuisance as hereinabove set forth exists.'
The prayer asked for the issuance of a temporary injunction 'directed to the defendant above named as owner, as well as to any lessee or agent of said building upon the premises as above described, enjoining and restraining said owner, lessee, or agent from directly or indirectly maintaining or permitting said nuisance * * * pending a final determination of this cause of action and complaint; and restraining the removal therefrom of any property hereinafter set forth in sub-division 3 of this prayer;
'That * * * an alternative order to show cause [issue] directed to the defendant above named, and to any lessee or agent of said building * * * [to] show cause, if any there be, why said building should not be declared a nuisance as provided by the laws of the State of Montana, and why the owner of said premises, lessee, agent, or any other person occupying the same should not be perpetually enjoined from conducting or maintaining said public nuisance;
.
The verification states the names of the relators and recites that each of them 'is one of the plaintiffs named in the foregoing action brought on the relation of the State of Montana against Mrs. Eloise M. Bradley; that he has read the foregoing complaint, knows the contents thereof, and that the same are true of his own knowledge except those matters and things alleged on information and belief, and as to those matters and things he believes the same to be true.' The verification is subscribed and sworn to by each relator before a notary public.
Defendant urges that the provisions of R.C.M.1947, Sec. 93-4205, are controlling,...
To continue reading
Request your trial
-
State ex rel. Harrison v. Baker, 9852
...procedure in abatement proceedings. State ex rel. Bottomly v. District Court, 115 Mont. 400, 143 P.2d 559. In State ex rel. Bergland v. Bradley, 124 Mont. 434, 225 P.2d 1024, the court held that a complaint verified on information and belief was sufficient to warrant the issuance of a tempo......