State ex rel. Heffron v. Bleth

• Decision Date: 23 September 1910
• Citation: 21 N.D. 27,127 N.W. 1043
• Parties: STATE ex rel. HEFFRON, Asst. Atty. Gen., v. BLETH et al.
• Court: North Dakota Supreme Court

21 N.D. 27

127 N.W. 1043

STATE ex rel.HEFFRON, Asst. Atty. Gen.,

v.BLETH et al.

Supreme Court of North Dakota.

Sept. 23, 1910.

Syllabus by the Court.

A notice of appeal to this court is sufficient, where it states that the appeal is from an order, fully describing it, although it does not expressly state that the appeal is from the whole of the order, in accordance with the provisions of the statute.

A failure to follow the provisions of section 7325, Rev. Codes 1905, by enumerating, in an order made, all the papers on which it is based, does not necessarily authorize a dismissal of an appeal from such order.

Payment of costs to the clerk, pursuant to an order of court, without proof of the acceptance thereof by the appellant, is not ground for the dismissal of the appeal.

An order of court is not made without notice, when it is expressly based on the terms and conditions of a former order, stating that when certain conditions have been complied with another order will be made without further notice.

Whether a building in which a tenant of the owner has maintained a nuisance by keeping and selling intoxicating liquors therein, of which the owner had knowledge prior to the commencement of an action to abate the nuisance, shall be turned over to the owner after it has been closed by proceedings under section 9373, Rev. Codes 1905, is discretionary with the trial court, and such discretion will not be disturbed except in cases of the abuse thereof.

If the owner complies with section 9373, supra, and the trial court is satisfied of his good faith in intending to abate the nuisance, the mere fact that he was aware of the maintenance of the nuisance by his tenant before the abatement proceedings were commenced does not necessarily deprive the owner of the benefits of said section.

Appeal from District Court, Stark County; Crawford, Judge.

Action by the State, on relation of F. C. Heffron, Assistant Attorney General, against Joseph Bleth and another, to abate a liquor nuisance. Petition of defendant for abatement of action on compliance with Rev. Codes 1905, § 9373, granted, and the State appeals. Affirmed.Andrew Miller, Atty. Gen., Alfred Zuger, C. L. Young, and F. C. Heffron, Asst. Attys. Gen., for the State. McFarlane & Murtha, for respondent.

MORGAN, C. J.

This is an action to abate a nuisance created by keeping and selling intoxicating liquors in a building in the village of Richardton, Stark county. In the complaint the defendant Leonard Bleth is charged with owning and having control of the lot on which the nuisance is alleged to have been maintained, and is charged with having allowed and permitted the maintenance of such nuisance. The defendant Leonard Bleth admits that he is the owner of the lot, but denies that any nuisance was maintained thereon with his knowledge or consent, and he denies that he permitted or allowed the same to be maintained. When the action was commenced, a preliminary restraining order was issued against both defendants, enjoining them from a continuance of the nuisance. After the service of such restraining order, the defendant Leonard Bleth secured an order to show cause why he should not be permitted to give a bond and have the building opened, and the premises turned over to him, and the action abated pursuant to the provisions of section 9373, Rev. Codes 1905. This order to show cause was based upon the affidavit of Leonard Bleth, wherein the facts set forth in his answer were alleged as grounds for the granting of his petition. He further stated therein that the premises in question were leased by him to Joseph Bleth on or about March 20, 1909, for use as a poolroom and for the sale of cigars and soft drinks, and for no other purpose. After the service of the restraining order, the defendant Leonard Bleth canceled the lease to Joseph Bleth. In the affidavit it is further stated that it is defendant's intention to occupy the building in question in carrying on a dry goods business, and the value of the premises is stated to be $1,000. On the hearing of the order to show cause, the state produced affidavits of two citizens of Richardton stating that they are well acquainted with the premises, and that it was commonly known in Richardton that this building was used as a place wherein intoxicating liquors were sold as a beverage for several years past, and that said lot and building were apparently under the control of and owned by the above-named defendants since January 1, 1909. On information and belief it is further stated in the affidavits that this building was used since that date as a place where intoxicating liquors were kept and sold. After hearing the proofs of both parties, the court made an order, on September 7, 1909, that Leonard Bleth be allowed to pay the costs and attorney's fees, amounting to $89.60, and to give a bond in the sum of $1,000, conditioned that said Leonard Bleth immediately abate the nuisance complained of, and that he prevent any nuisance upon said premises for one year, and that upon the payment of said costs to the clerk and the filing of the bond the court would, without further notice, make an order opening the building and surrendering same to the said Leonard Bleth and abating the action. The bond having been filed and the costs and attorney's fees paid into the clerk's office, the trial court made an order, on September 13th, that the premises be turned over to the defendant Leonard Bleth, and that the action be abated. The state excepted to the making of the order, and has appealed from the same.

Certain preliminary questions of practice are raised by the respondent which we will dispose of before considering the merits.

1. It is claimed that the notice of appeal is not in compliance with the statute, and that the appeal should be dismissed on account of such defective notice. The defendant claims that it does not specify whether the appeal is from the whole of the order or from a part thereof. The notice states that “the plaintiff appeals to the Supreme Court of the state of North Dakota from the order made and entered in the above-entitled action on the 13th day of September, 1909.” The provisions of the order are further stated in the notice. The statute provides that an appeal must be taken by serving a notice upon the adverse party and filing the same in the office of the clerk of the court in which the order appealed from is entered, “stating the appeal from the same, and whether the appeal is from the whole or a part thereof and, if from a part only, specifying the part appealed from.” Section 7205, Rev. Codes 1905. We think that the notice complies with the statute. The objection urged that the notice does not in express words state whether the appeal is from the whole of the order or from a part thereof is technical and not substantial. We think the notice substantially complies with the statute in this regard. An appeal from an order is necessarily from the whole thereof. Nothing would be added to the effect of the notice by stating that the appeal is from the whole of the order. The same objection was before the court in Irvin v. Smith, 68 Wis. 220, 31 N. W. 909, and held of no force, under a statute which is like our own.

2. The order appealed from fails to state what affidavits, papers, or evidence it is based on, and was therefore not drawn in compliance with the provisions of section 7325, Rev. Codes, 1905, requiring such statement. This omission is urged upon us as a ground for dismissing the appeal. Under the...