State ex rel. Harrison v. Baker, 9852

• Decision Date: 28 May 1959
• Docket Number: No. 9852,9852
• Citation: 135 Mont. 180,340 P.2d 142
• Parties: STATE of Montana ex rel. John C. HARRISON, County Attorney of Lewis and Clark County, Montana, Plaintiff and Respondent, v. Dorothy Josephine BAKER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 142

340 P.2d 142

135 Mont. 180

STATE of Montana ex rel. John C. HARRISON, County Attorney of Lewis and Clark County, Montana, Plaintiff and Respondent, v. Dorothy Josephine BAKER, Defendant and Appellant.

No. 9852.

Supreme Court of Montana.

Submitted April 6, 1959.

Decided May 28, 1959.

Rankin & Acher, Helena, for appellant. Wellington D. Rankin and Arthur P. Acher, Helena, argued orally.

Clarence Hanley, Deputy County Atty., John C. Harrison, County Atty., Helena, for respondent. Clarence Hanley, Deputy County Atty., argued orally.

ERNEST E. FENTON, District Judge, sitting in place of CASTLES, Justice.

The respondent brought proceedings in the court below to abate a nuisance as defined in R.C.M.1947, § 94-1002, alleged to exist at 17 1/2 South Main Street in Helena, Montana. Summons was issued on December 13, 1956. On the following day a temporary restraining order was issued directing the defendant to appear on December 28, 1956, to show cause why she should not be enjoined and restrained 'during the pendency of this action' from using the premises as a place of prostitution, and to further show cause why the court should not issue an order of abatement providing for the removal of fixtures, musical instruments and other movable property used in maintaining said nuisance and providing for the sale thereof. A hearing was held on December 28, 1956. On December 29, 1956, objections were filed to the entry of an injunction order on the ground, among others, that appellant still had additional time for a general appearance. On January 2, 1957, appellant's motion to strike certain portions of the complaint was filed, and on January 10, 1957, a final injunction order was signed closing the premises for one year, forever enjoining the appellant from using the same for unlawful purposes, and ordering that beds, bedding, linens, chairs, carpets, and musical instruments be removed and sold by the sheriff. A motion to vacate the injunction and order of abatement was then made upon the ground, among others, that the granting of final relief was premature in that the cause was still pending on the above-mentioned motion to strike. This appeal followed the denial of the motion to vacate the injunction.

The first question presented by the appeal concerns the power of the district court, following the hearing upon the order to show cause, to grant a permanent injunction and to order a sale of the personal property in the abated premises.

Two sections of our code of civil procedure relating to injunctions (R.C.M.1947, §§ 93-4210, 93-4211) have heretofore been applied as governing and controlling the 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 temporary restraining order, notwithstanding the requirement of the code of civil procedure, R.C.M.1947, § 93-4205, that an injunction order may not be issued unless the material allegations of the complaint are 'made positively and not upon information and belief.' It was held that R.C.M.1947, § 94-1004, relating to abatement proceedings, was controlling, and that since that statute included no requirement of a positive verification, such a requirement could not be added by the court. Respondent relies upon a statement in the last-cited case which, standing alone, might be construed as indicating that the general procedure for the issuance of an injunction in an ordinary civil action has no application to abatement proceedings. That statement, however, was limited to the procedure specified in R.C.M.1947, § 94-1004. The court then went on to say: 'State ex rel. Bottomly v. District Court, 115 Mont. 400, 143 P.2d 559, is not authority for the proposition that the general procedure prescribed in sections 93-4201-93-4216 for the issuance and hearing of civil injunctions is applicable to public nuisances. Reference to those sections is only made where the law does not direct the manner in which the court shall proceed.' [124 Mont. 434, 225 P.2d 1027.] Emphasis supplied.

The statutes relating to abatement proceedings, R.C.M.1947, §§ 94-1001-94-1011, do not direct the manner in which the court shall proceed from and after the issuance of the temporary restraining order until the entry of judgment. This proceeding is denominated 'an action in equity in the name of the state of Montana'. R.C.M.1947, §§ 94-1003. It is a civil suit. State ex rel. Nagle v. Naughton, 103 Mont. 306, 309, 63 P.2d 123; State ex rel. Lamey v. Young, 72 Mont. 408, 412, 234 P. 248; State ex rel. Bourquin v. Morris, 67 Mont. 40, 45, 214 P. 332. Being civil in nature, suits to abate public nuisances must be governed by the same rules applicable in other injunction suits where no other statutory direction is given as to the manner in which the court shall proceed.

The rules of practice and procedure governing other injunction suits do not permit the granting of a permanent injunction until a final judgment is rendered. In State ex rel. Thompson v. District Court, 132 Mont. 53, 59, 313 P.2d 1034, 1037, the court said:

'While there are several points raised by the relator and answered by the respondent, the main issue, so far as the court is concerned, is whether or not the district court was acting within jurisdiction in ordering a permanent injunction in the situation that existed.

'In Sheridan County Electric Co-Op, Inc. v. Ferguson, 124 Mont. 543, 554, 227 P.2d

597, 603, Mr. Chief Justice Adair, in the opinion of the court therein, stated:

"Our Codes, R.C.M.1947, § 93-4201 to 93-4216, inclusive, govern the issuance of injunction orders. There are three kinds of such orders, namely, (1) 'restraining orders,' (2) 'temporary injunctions' and (3) 'perpetual injunctions.'

"Any order which requires a person to refrain from a particular act for any period of time, no matter what its purpose, is an 'injunction.' This applies to a 'restraining order.' R.C.M.1947, section 93-4201; Labbitt v. Bunston, 80 Mont. 293, 260 P. 727, 730.

"A 'restraining order' is an interlocutory order issued upon an application for an injunction and generally made without notice to the opposite party and intended only as a restraint upon him to preserve the status of the matters in litigation until a hearing on an order to show cause may be held and concluded and the propriety of granting a 'temporary injunction' can be determined. Compare Rea Bros. Sheep Co. v. Rudi, 46 Mont. 149, 159, 127 P. 85; Wetzstein v. Boston & M. Consol. Copper & Silver Min. Co., 25 Mont. 135, 63 P. 1043, 1044.

"In a suit for a perpetual injunction, a 'temporary injunction' is merely an ancillary writ or provisional remedy which the plaintiff is at liberty to apply for or not as he desires and it is generally issued on notice and after hearing, its only object being to maintain the status quo until plaintiff may have opportunity for a trial of his suit on the merits. Unless sooner dissolved it is effective until final hearing on the merits.

"A 'permanent' or 'perpetual injunction' is in no sense a provisional remedy. It issues as a judgment which finally settles the rights of the parties after final determination of all the issues raised."

The above-stated rules are applied to abatement proceedings similar to the case at bar in section 441, 30 Am.Jur., Intoxicating Liquors, 775, wherein it is said that 'the court may not on an interlocutory hearing adjudicate the defendant's place of business to be a nuisance and order it abated, since such order is tantamount to a final judgment.' See, also, Pullen v. Meadors, 196 Ga. 796, 27 S.E.2d 655.

The statutes relating to abatement proceedings do contain specific directions as to how the court shall proceed if judgment is entered against the defendant. It is provided by R.C.M.1947, § 94-1007, that 'if the existence of the nuisance be established in an action as provided herein, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, musical instruments, gambling...