State ex rel. McClory v. Donovan
| Decision Date | 17 December 1901 |
| Citation | 88 N.W. 717,10 N.D. 610 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cavalier County; Fisk, J.
Action by the state, on the relation of P. J. McClory, as assistant attorney general, against E. I. Donovan. Judgment for defendant, and plaintiff appeals. Reversed.
Judgment reversed, and judgment entered, pursuant to the order of this court in favor of the plaintiff, and for relief demanded in the complaint with costs.
Bosard & Bosard, for appellant.
Templeton & Rex, for respondent.
This is an action in equity, and the relief sought by the plaintiff is the abatement of a liquor nuisance, as defined by § 7605, Rev. Codes, 1899. The trial court found the material facts to be true as stated in the complaint, but as a conclusion of law adjudged that the action should be dismissed and a judgment of dismissal was accordingly entered in the trial court. This judgment was entered upon the theory that the nuisance which was found by the court to exist as a fact was in a drug store, and was maintained by the defendant under the shield of a druggist's permit, and, being so maintained, that the nuisance could not be abated by a court of equity. From such judgment the state appealed to this court, and the entire case was tried anew in this court under § 5630, Id., upon all the evidence offered and proceedings had in the trial court. The litigation in this court resulted in a reversal of the judgment, and the district court was directed by this court to "reverse its judgment, and enter a judgment in favor of the plaintiff for the relief demanded in the complaint." See State v. Donovan, 10 N.D. 203, 86 N.W. 709. The remittitur embracing the record and including said directions to the district court was sent to the court below whereupon the following proceedings were had in the district court: The defendant, after notice to plaintiff's counsel, presented a petition to the district court, which embodied a request, in substance, that he (the defendant) upon payment of the costs of the action, be permitted to file a bond conditioned as required by § 7605, Rev. Codes 1899, and that upon his doing so a judgment should be entered abating the action. The record further shows that, after a hearing upon such petition was had in the district court, an order was made as follows: "It is ordered that within one week from this date said defendant pay to the attorneys for plaintiff the sum $ 285.85, the costs of this action as taxed and allowed, including an attorney's fee of $ 250, hereby fixed by the court, and that he file in the office of the clerk of this court his bond, with sureties to be approved by the clerk of this court, in the penal sum of $ 7,000, conditioned as provided by § 7605, Rev. Codes 1899; and that on so doing, judgment be forthwith entered herein abating this action without further order; and on default of said defendant so to pay such costs and file such bond, then that judgment be entered as prayed in the complaint." To this order an exception was preserved, and the making of such order is the only error assigned in this court. Pursuant to the order, judgment was entered abating the action, and from such judgment the plaintiff has again appealed to this court.
In this court a preliminary motion has been filed in behalf of the respondent to dismiss the present appeal. The motion is based upon the contention that Messrs. Bosard & Bosard (the attorneys who have signed and served the notice of appeal) are mere volunteers in the action, and are devoid of authority to take an appeal or sign a notice of appeal in this action. In order to understand the basis of this motion, it becomes necessary to make a brief statement of facts. The action was instituted in the year 1898 by P. J. McClory, as assistant attorney general for Cavalier county, and the summons in the action was signed by McClory in said official capacity; but it is conceded that after the commencement of the action Messrs. Bosard & Bosard were retained by private parties to assist in the prosecution. It appears further that said special counsel had the exclusive charge of the case in the district court during its trial, and that after judgment was entered in the district court the first time said counsel took an appeal to this court, and in doing so signed and served the notice of appeal; and it is also true that said special counsel prepared and served the briefs and abstracts and made the oral argument in this court on said first appeal. It is further true that when the record was remanded said counsel represented the state, and were recognized as attorneys for the state by the defendant's attorneys in all that was done in and about the application made by the defendant's counsel for the abatement of the action. It is further true that counsel for the defendant have never at any time, prior to making this motion, raised an objection as against the right of said assistant counsel to represent the state in this action. We are clear that upon this state of facts the defendant is estopped from raising the question of the jurisdiction of this court to hear the second appeal. As supporting this conclusion, we cite the case of Woods v. Walsh, 7 N.D. 376, 75 N.W. 767.
But there is another ground upon which the motion should be denied. The notice of appeal is signed by Bosard & Bosard, who are resident attorneys, as the attorneys for the plaintiff. Upon its face the notice shows and announces to all concerned that the attorneys who assumed to represent the plaintiff in taking the appeal are the attorneys for the plaintiff in fact. This prima facie showing has not been overcome or disputed by any evidence submitted on the motion to dismiss the appeal. Of course the mere fact that the attorney who signed the summons did not take the appeal is of no consequence, and does not show or tend to show that Messrs. Bosard & Bosard have not been employed to take this appeal. Upon the record standing alone, we should be compelled to hold that the attorneys who have assumed to take the appeal have been employed to do so. But counsel, in support of the motion, place great stress upon the provisions of chapter 178 of the Laws of 1901, and argue upon this statute that the state's attorney, or the attorney general, or some official representative of the state, and such officers only, have authority to prosecute the present appeal to this court, inasmuch as such appeal was not attempted to be taken until said statute took effect. After a careful reading of the enactment of 1901, we fail to find in the same any support whatever to the contention of counsel. There is not a line or suggestion in the statute looking towards the matter of prosecuting or appealing any action which had been commenced prior to the passage of the act. The object of the enactment is to define the duties of state's attorneys and the attorney general, and to give said officials exclusive control of certain classes of actions. But the statute, by its terms, is clearly prospective in its operation, and is not retrospective and hence it can have no bearing in any case such as this, which was brought and tried on its merits before the statute went into effect. The motion to dismiss must be denied.
We turn now to a consideration of the merits. It is the contention of the respondent that the order of the district court directing the abatement of the action was properly entered under the provisions of § 7605, supra, which directs that actions in equity brought under said section shall be abated upon certain conditions The...
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