State ex rel. Johnson v. Hash

• Decision Date: 15 December 1944
• Docket Number: 31886.
• Citation: 16 N.W.2d 734,145 Neb. 405
• Parties: STATE ex rel. JOHNSON, Atty. Gen., et al. v. HASH et al.
• Court: Nebraska Supreme Court

16 N.W.2d 734

145 Neb. 405

STATE ex rel. JOHNSON, Atty. Gen., et al. v. HASH et al.

No. 31886.

Supreme Court of Nebraska

December 15, 1944

Syllabus by the Court.

1. Where a mandate of the Supreme Court makes the opinion of the court a part thereof by reference, the opinion should be examined in conjunction with the mandate to determine the nature and terms of the judgment to be entered or the action to be taken thereon.

2. A court of equity has jurisdiction to enjoin the maintenance of a nuisance, and, where the necessities of the case require it may enjoin the operation of the business which occasions such nuisance.

3. A decree of the district court enjoining specified acts constituting a business a nuisance does not meet the terms of a mandate requiring the abatement of the nuisance by permanently enjoining the operation of the business found to constitute a nuisance.

Walter R. Johnson, Atty. Gen., Rush C. Clarke, Asst. Atty. Gen., H Emerson Kokjer, Deputy Atty. Gen., and Andrew D. Mapes, Co. Atty., of Norfolk, for appellant.

Frederick M. Deutsch, of Norfolk, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an appeal by the state from a decree entered upon the mandate of this court issued upon a judgment obtained in a former appeal in the same case. The appellee cross-appeals, claiming that the decree entered exceeds the scope of the controlling statute and the mandate of this court.

In the former appeal this court determined that the premises in question were being operated by the defendants contrary to the provisions of the Liquor Control Act and constituted a common nuisance as defined by the provisions of that act. This court then said: 'But where, as here, the main business of the defendants contravenes the law of the state and the legitimate business of the place is either a sham or a minor part of the whole, the only adequate remedy consists of an abatement of the nuisance by closing the place by injunctive process in the manner prescribed by the legislature.

'We conclude therefore that the trial court was in error in failing to enjoin the operation of the roadhouse described in the petition, pursuant to the prayer thereof. The cause is therefore reversed with directions to the trial court to abate the nuisance, pursuant to the provisions of section 53-377, Comp.St.Supp.1941.' State ex rel. Johnson v. Hash, 144 Neb. 495, 13 N.W.2d 716, 720.

The pertinent part of the mandate issued upon the final determination of the issues presented in the former appeal is: '* * * it was considered by said Court a certified copy of the opinion of the court being hereto attached and made a part hereof, that the judgment rendered by you be reversed at the costs of said defendants taxed at $131.60 and the cause remanded with directions to abate the nuisance, pursuant to the provisions of Section 53-377, Comp.St.Supp.1941.'

The pertinent part of the judgment entered on the mandate is: '* * * that the defendants Rex Hash and Bertha Hash be and they are hereby perpetually enjoined from permitting or suffering upon the following described premises, to-wit: * * * each of the following acts: sale, possession or consumption of intoxicating liquor; spiking, selling or using set-ups or mixes; permitting the place to become a resort for people to become intoxicated, noisy, profane, or vulgar; the presence of persons of vulgar, dissolute, and roistering habits to congregate on the premises or to engage in such activities thereon; maintaining, operating, permitting or suffering to be operated on said premises any slot machine or other gambling device, and from permitting or suffering gambling in any form upon said premises, to all of which plaintiff excepts. * * * that the buildings upon said above-described premises, described in the petition, shall be closed and padlocked for a period of one year * * *.'

It is the contention of the attorney general that the mandate calls for the enjoining of the business as a common nuisance and the padlocking of the buildings upon the premises used in maintaining such nuisance agreeable to the provisions of section 53-377, Comp.St.Supp.1941, now section 53-199, R.S. 1943. Appellee contends that the trial court is limited by the strict language of the mandate and that the decree entered exceeds its scope.

It will be noted that the mandate makes the opinion of the court a part thereof by reference. Under such circumstances, the...