State ex rel. Harley v. Harness

• Decision Date: 05 October 1940
• Docket Number: 34859.
• Citation: 152 Kan. 468,105 P.2d 885
• Parties: STATE ex rel. HARLEY, Co. Atty., v. HARNESS et al.
• Court: Kansas Supreme Court

105 P.2d 885

152 Kan. 468

STATE ex rel. HARLEY, Co. Atty., v. HARNESS et al.

No. 34859.

Supreme Court of Kansas

October 5, 1940

Syllabus by the Court.

In action to abate and perpetually enjoin maintenance of intoxicating liquor nuisance under statute, refusal of trial court to grant injunction on ground that evidence, though showing that liquor had been sold at place sought to be enjoined, failed to show that operators of place knew anything about it, was not error. Gen.St.1935, 21-2130 et seq.

In an action to abate and perpetually enjoin the maintenance of an intoxicating liquor nuisance under our statute, G.S.1935 21-2130 et seq., an injunction was denied and judgment entered for defendant. The state appealed upon a question reserved. The record on the appeal is examined and, no error appearing, the judgment is affirmed.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by the State of Kansas, on the relation of Tom Harley, County Attorney, against E. R. Harness and Charles Leonard to abate and perpetually enjoin the maintenance of an intoxicating liquor nuisance in certain property. From judgment denying application for permanent injunction, the State appeals.

Jay S Parker, Atty. Gen., and Tom Harley, Co. Atty., and Robert H Nelson, Harold A. Zelinkoff, Grey Dresie, J. Ashford Manka and Dean L. Lachenmyer, Deputy Co. Attys., all of Wichita, for appellant.

Charles B. Hudson and Roger P. Almond, both of Wichita, for appellees.

ALLEN Justice.

The county attorney of Sedgwick county brought the action in the name of the state to abate and perpetually enjoin the maintenance of an intoxicating liquor nuisance in certain property described in the petition. The petition charged the maintenance of a nuisance as defined by our statute, G.S.1935, 21-2130, and upon the filing of the petition a temporary injunction was issued. The answer of defendants was a general denial.

The matter came on for hearing on the application for a permanent injunction. At the close of the evidence the record sets forth the following colloquy between the court and counsel:

"The Court: 'Well, I think the court would be justified in making a finding that Mr. McGuire purchased liquor out there and that by a preponderance of the evidence there was the maintenance of a liquor nuisance at that place. It is very indefinite. We don't know who the man was that sold it.'

"Further by the Court: 'I think there is evidence that Mr. McGuire

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