State ex rel. Halvorson v. Simpson, 7265

• Decision Date: 31 October 1951
• Docket Number: No. 7265,7265
• Citation: 78 N.D. 440,49 N.W.2d 790
• Parties: STATE ex rel. HALVORSON v. SIMPSON.
• Court: North Dakota Supreme Court

Page 790

49 N.W.2d 790

78 N.D. 440

STATE ex rel. HALVORSON v. SIMPSON.

No. 7265.

Supreme Court of North Dakota.

Oct. 31, 1951.

Syllabus by the Court.

1. On the trial of the keeper of an alleged disorderly house for maintaining a nuisance the owner of the premises is not a necessary party.

2. A court will take judicial notice of its own records in the case on trial and of all matters patent on the face of such records, including all prior proceedings therein.

3. In a trial for the abatement of a nuisance the court committed no error in taking judicial notice of the proceedings had on a trial of the defendant on a charge of contempt arising out of an injunctional order issued in the same case.

4. In an equitable action the right to judgment is not limited to the facts as they existed at the commencement of the action but the facts as they exist at the time of the trial are properly received in evidence so that the court may award the relief that the facts then show will best serve the ends of justice.

5. Whether a place is a bawdy house may be shown by the general reputation of the place, the conversations and acts of its inmates, and any facts and circumstances from which a clear and satisfactory inference of its character can be drawn.

6. The evidence in the instant case is examined and found sufficient to sustain the judgment of the district court for the abatement of a nuisance.

7. To seize and destroy personal property found in a disorderly house also used as the home of the defendant there must be evidence to show what personal property was used in the keeping and maintaining of the nuisance and a judicial determination thereon.

Paul Campbell, Minot, for appellant

H. L. Halvorson, Jr., Minot, for respondent.

GRIMSON, Judge.

This is an action for the abatement of a common nuisance under Chapter 42-02, NDRC 1943. H. L. Halvorson, Jr., as State's Attorney of Ward County, issued a summons and complaint herein on Nov. 30, 1949. In the complaint he alleges that he is bringing the action as State's Attorney for, and on behalf of, and in the name of the State of North Dakota; that the defendant was the occupant of certain premises in the City of Minot described by lots and block and also described as 228 3rd. St. S.W. Minot, owned by William W. Childress; that the defendant was maintaining upon said property a house of prostitution and maintaining thereon a common nuisance, commonly known as a bawdy house, whereby the decency of the neighborhood was habitually disturbed and will continue so unless restrained by an order of the court. He prays that the premises be declared a common nuisance and that an order issue directing the Sheriff of Ward County to shut up and abate the nuisance; that the defendant be enjoined from permitting said premises to be used for illicit sexual intercourse; that a temporary injunction issue pending the trial. In support of that complaint the state's attorney also filed his affidavit on information and belief making the same allegations and further alleging that the defendant was found guilty in police court on Nov. 26, 1949 of operating a disorderly house on said premises and that numerous charges have been made against the defendant and other occupants of said building involving moral turpitude upon which they have been convicted and sentenced; that the defendant has used said premises as a house of prostitution where the peace, quiet and decency of the neighborhood has been habitually disturbed. The state's attorney also asked for an order to show cause why the premises should not be shut up and the sheriff ordered to take and retain possession of the property until final judgment.

Upon this complaint and affidavit a temporary injunction was issued restraining the defendant until the determination of the action or the further order of the court from maintaining a nuisance upon said premises by permitting them to be used as a place for illicit sexual intercourse. There was also issued an order to show cause on Dec. 3, 1949, why the premises should not be shut up and abated until the trial of the action or the further order of the court. All these papers were served upon the defendant on Nov. 30, 1949. At the hearing on the order to show cause a warrant was issued directing the sheriff to abate said nuisance. The defendant thereupon obtained an order to show cause from this court why an appropriate supervisory writ should not issue to set aside that order of the district court. Upon hearing in this court such writ was issued, and that order vacated. Simpson v. District Court of Ward County, N. D., 42 N.W.2d 213.

The defendant for answer in the abatement action admitted that she was in possession and that Childress was the owner of the premises described in the complaint and that Mr. Halvorson was now State's Attorney of Ward County. She made a general denial of all allegations against herself and said she had no knowledge of the violation of the peace and quiet of the neighborhood and, therefore, denied the same. In an affidavit filed in connection with the order to show cause she admitted she was arrested, tried and found guilty in police court on Nov. 26, 1949, on a charge of operating a disorderly house, but alleged she intended to appeal from this conviction and denies her guilt and alleges unjust police persecution.

On Sept. 7, 1950, an order to show cause why the defendant should not be held in criminal contempt because of alleged violation of the temporary injunctional order, was issued on the petition of the state's attorney. A hearing thereon was held on the 16th day of October 1950. On such hearing the district court found the defendant guilty of criminal contempt and ordered judgment thereon. From that judgment the defendant appealed to this court. This court has affirmed that judgment in an opinion filed simultaneously herewith. State v. Simpson, N. D., 49 N.W.2d 777. That proceeding will be hereafter referred to as the contempt proceeding.

Following the trial of the contempt proceeding the court heard the abatement action and found that the defendant had maintained a common nuisance on the premises described by permitting the practice of prostitution, assignation and lewdness in the residence thereon, ordered the abating of said nuisance and taxed the defendant the costs and $100 attorney fee. From a judgment entered thereon this appeal is taken and a trial de novo demanded.

On the hearing the court took 'judicial notice of all records and files in the case and the testimony given in the contempt hearing.' In addition thereto the state's attorney offered testimony of three further witnesses corroborating the testimony already given in the contempt hearing. The defendant then testified in her own behalf and was supported by the testimony of her attorney. In the opinion on the contempt proceeding arising out of this case the evidence relative to her violation of the temporary injunction is recited and reference is made thereto. Defendant's testimony in the instant case was much the same as in the affidavit she filed in that hearing. She admits hearing witnesses in police court testify against her four or five times in the last year, that one of her girls was picked up once for vagrancy, once for prostitution, and that one girl was found hid in the radio cabinet and one in a trunk in her place. She admits she was arrested several times for vagrancy, soliciting etc., but claims she was never guilty.

In her first assignment of error defendant claims the court erred in admitting any evidence under the complaint for the reason that said complaint failed to state facts sufficient to constitute a cause of action. That matter was raised in the contempt hearing against the validity of the temporary injunction and was there ruled adversely to defendant's contentions.

Defendant objected to the testimony of the policemen as regards the reputation of defendant's place based largely on what defendant's attorney calls police information. There is no showing that the policemen had any special interest in this matter except that of performing their duty. There is no reason why such testimony should be excluded. The weight to be given to the testimony was for the determination of the trial court.

Much of the argument of defense counsel both on oral argument and in his briefs is devoted to what is called the background of the case and what he alleges to be the persecution of the defendant by the police department. He, in effect, admits that the district in which defendant's house is located, commonly referred to as 'Third Street Southwest' has a bad, moral reputation. He claims that in the effort of the Minot Police to clean up that district the defendant suffers, not because she is guilty of any violations of law, but because she is located in that district. His assignments of error are replete with statements that the court improperly received in evidence police records and blotters without sufficient foundation showing convictions of the defendant and others of crimes not akin to the charge of the complaint herein, based on hearsay and police testimony with no opportunity for defendant to cross examine complainants and with no knowledge on her part of said alleged offenses.

An examination of the records and files in this case does not bear out defendant's claim of error in this respect. The only time in the various hearings had in this matter that police records were used in evidence was at the time of the hearing on the order to show cause held on Dec. 3, 1949, why warrant should not issue to the sheriff to take and retain possession of the premises pending the trial of the action. In the order settling the statement of the case the trial court specifically enumerated that of which he took judicial notice and that hearing of Dec. 3, 1949 is not included therein.

It is true that in the contempt proceedings the state introduced the records of the...