State ex rel. Ely v. Bandall

• Decision Date: 08 November 1927
• Parties: STATE OF MISSOURI EX REL. BEN ELY, JR., PROSECUTING ATTORNEY, APPELLANT, v. AUGUSTUS BANDALL, JOHN M. HOWELL AND HENRY MURRAY, RESPONDENTS. *
• Court: Missouri Court of Appeals

299 S.W. 155

220 Mo.App. 1222

STATE OF MISSOURI EX REL. BEN ELY, JR., PROSECUTING ATTORNEY, APPELLANT, v. AUGUSTUS BANDALL, JOHN M. HOWELL AND HENRY MURRAY, RESPONDENTS. *

Court of Appeals of Missouri, St. Louis

November 8, 1927

Appeal from the Hannibal Court of Common Pleas.--Hon. Charles T Hays, Judge.

Judgment reversed and cause remanded.

Ben Ely, Jr., Prosecuting Attorney and Walter Stillwell Assistant Prosecuting Attorney, for appellant.

Roy Hamlin, of Counsel.

(1) The owners in fee are not necessary parties in an action for an injunction under the prohibition law, particularly when, as in the instant case, the property was to remain, according to the lease, in the possession of the lessee for more than a year, and the lessee was liable for the payment of rent during all the time that the building might have been "padlocked." Denapolis v. U.S. 3 F. (2) 722; United States v. Lento, 8 F. (2) 432. (2) But even assuming that there were a defect of parties defendant in that Henrietta Bandall was not made a defendant, still under our law the court should not have decided against the plaintiff on this ground but ought to have ordered the said Henrietta Bandall to have been made a defendant and process issued for her. Sec. 1275, R. S. 1919; Hayden v Marmaduke, 19 Mo. 403; Butler v. Lawson, 72 Mo. 227; O'Fallon v. Clopton, 89 Mo. 284 at 290; Robinson v. Kind, 23 Nev. 330; Osterhoudt v. Ulster County, 98 N.Y. 239; Uhlfelder v. Temson, 15 A.D. 436; Person v. Fidelity & Casuality Co. (6th Ct. 1899), 92 F. 965, 35 C. C. A. 117; 15 Cyclopedia of Pleading & Practice, p. 765. (3) Assuming then that the failure to join Henrietta Bandall as a party defendant did not warrant the court's decision for the defendant, the evidence was clearly sufficient to show beyond doubt the existence of a nuisance under the prohibition act, and hence the injunction ought to have issued. Laws of 1921, p. 415 et seq; Dietz v. Cavender, 208 N.W. 54, 201 Iowa 989; U. S. v. Archibald, 4 F. (2) 587; Denapolis v. U.S. supra; Casay v. U.S. 8 F. (2) 709; Lewinshom v. United States (1923 C. C. A. 7th); United States v. Eliert Brewing Co. (D. C. Oh.), 278 F. 659; Kathriner v. United States, 276 F. 41; Barker v. United States, 289 F. 249; United States v. Reisenwaber, 288 F. 249; State v. Copeland, 205 P. 360; State v. Giroux, 90 P. 249.

J. W. Hays and Lewis O'Connor for respondents.

(1) Relator in point No. 1 insists that the owners of the fee are not necessary parties in an action for an injunction under the prohibition act, and in his assignment of errors he charges the court with error in refusing to allow relator to amend and implead Henrietta Bandall as party defendant. The title to the property described in the bill is vested in Augustus Bandall, defendant, and Henrietta Bandall, his wife, as tenants by the entirety, and therefore Henrietta Bandall was a necessary party because the Missouri Prohibition Act does not provide for the owner of the property procuring the possession by executing a bond that intoxicating liquors will not be manufactured, sold and kept about the building. The rights of Henrietta Bandall with reference to this property cannot be litigated and determined without she having her day in court. The statute abolished the legal unity (so far as the control of property is concerned) of husband and wife, but did not abolish the estate by the entirety. Each is entitled to the possession of all the property as against every other person except the other. Bains v. Bullock, 129 Mo. 119-120; State v. Gruener (Ia.), 192 N.W. 426. (2) The court did not err in refusing plaintiff the right to amend his bill and implead Henrietta Bandall as a party defendant. The fact that Augustus Bandall and Henrietta Bandall held the property as tenants by the entirety was a matter of public record since 8 o'clock A. M. on the 3rd day of March, 1923, being the date of the recording of the deed from Goodmans to Bandalls, and very slight diligence on the part of attorney for plaintiff would have disclosed to him, when he filed his bill, the very fact that he now seeks to set up by way of amendment. 31 Cyc. 392-393; Collins v. Glass, 46 Mo.App. 302; Singer Mfg. Co. v. Givens, 35 Mo.App. 607-608; Craig v. Carmichael et al., 271 Mo. 522-523; Wilkerson v. Sampson, 56 Mo.App. 282. The advisability of the amendment sought by relator rests in the sound discretion of the court and is a fact to be determined by the court, and the determination thereof will be reviewed only in case of the gross abuse of such discretion. The presumption is always against the abuse of such discretion. 31 Cyc. 368-369-370; 21 R. C. L. 130, 572-573-574, 579; Chauvin v. Lownes, 23 Mo. 227-228; Allen v. Ransome, 44 Mo. 263, 266-267; Ensworth v. Barter, 67 Mo. 622; Merrill v. City of St. Louis, 83 Mo. 249-250; Joyce v. Growner, 154 Mo. 263; Singer Mfg. Co. v. Givens, 35 Mo.App. 608; Wilkerson v. Sampson, 56 Mo.App. 281-282; Cheney v. O'Brien, 10 P. 479; Schmidt v. Braley, 1 N.E. 267; Heniskoeld v. Insurance Co., 64 N.W. 769; Smith, Admx., v. Electric Co., Ann. Cas. 1917A 1166. (3) It is not reversible error for the court to refuse to make separate findings of law and fact in an equity case. Gaines & Co. v. Whyte Grocery Co., 107 Mo.App. 532; Miller v. McCaleb, 208 Mo. 573-574.

BENNICK, C. Daues, P. J., Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is a suit in equity, instituted on March 11, 1926, by the State of Missouri, at the relation of the Prosecuting Attorney of Marion County, asking for the issuance of an injunction against defendants, restraining them from handling intoxicating liquors upon certain premises described in the bill, and praying that the premises be ordered closed for the period of one year. The decree of the court was in favor of defendants, and, from the judgment rendered, the state, after an unavailing motion for a new trial, has duly perfected this appeal.

The bill charged, in substance, that the unlawful sale of intoxicating liquor, and the congregation of large numbers of lewd persons on the premises, both of which had occurred continuously for more than one year prior to the institution of the suit, constituted a common nuisance.

The evidence disclosed that the locus in quo was owned, at all times herein involved, by defendant Augustus Bandall and Henrietta Bandall, his wife, as tenants by the entirety, and that the title to the property had been so held since March 3, 1923, on which date the deed to the Bandalls had been duly recorded. On March 8, 1923, a lease to the property for a term of five years was executed by the Bandalls in favor of defendant Howell, who thereafter held possession of the premises, ostensibly operating a restaurant therein in which defendant Murray was employed as a waiter.

There was evidence that a number of raids of the premises had been made during the years 1925 and 1926, and that on several of such occasions liquor had been found. Furthermore, defendants Howell and Murray had both pleaded guilty in a justice's court to a violation of the prohibition law on such premises. Accounts of the raids, and of the conviction of defendants Howell and Murray had been published in a newspaper to which defendant Bandall was a subscriber, which items, in fact, he admitted having read.

Near the close of defendants' evidence, the proof of Henrietta Bandall's interest in the property appeared for the first time, whereupon counsel for the State requested orally that the cause be continued, that the said Henrietta Bandall be impleaded as a party defendant to the suit, and that summons issue for her. Upon the denial of such request, counsel filed a written motion renewing the request, which motion was in turn overruled. Certain additional testimony was thereupon offered on behalf of defendants, at the conclusion of which the court made the finding we have heretofore indicated.

In their very able brief, learned counsel for the State suggest that the decision of the trial court must necessarily have been based upon one of two theories of law: First, that Henrietta Bandall, one of the co-owners of the fee in the land involved, was a necessary party defendant, without whose presence the bill would not lie; or, second, that the evidence as a whole did not establish the existence of a nuisance, or knowledge thereof on the part of the owners of the fee. Accordingly, counsel assign that the court erred in refusing to implead said Henrietta Bandall as a party defendant, and to order summons to be issued for her, as requested by the State; and in finding the issues for the defendants and against the plaintiff.

In passing upon the issues thus before us, we are squarely faced at the outset with the necessity of determining whether, in an injunction suit brought under the provisions of section 6594b, Revised Statutes 1919, as enacted Laws 1921, p. 415, asking that certain premises be ordered closed for the period of one year by reason of the conduct of the lessee thereof amounting to a common nuisance, the owner of the fee is a necessary party, so that no decree for the complainant can be rendered without the presence of such party. It is the contention of the State on this appeal that the owner of the fee is a proper, but not a necessary, party, though it would seem that this suggestion comes somewhat as an afterthought, inasmuch as counsel originally brought the bill against one of the co-owners, and not only endeavored most zealously in the trial of the case to have the other co-owner impleaded, but also are here protesting that the court erred in refusing to do what they would now have us believe would have been a wholly unnecessary act on its part.

In attempting to solve this troublesome question, we are left largely to our own thought in...