State ex rel. McClory v. McGruer

• Decision Date: 07 November 1900
• Docket Number: 6731
• Citation: 84 N.W. 363,9 N.D. 566
• Court: North Dakota Supreme Court

84 N.W. 363

9 N.D. 566

STATE EX REL P. J. MCCLORY v. N. MCGRUER

No. 6731

Supreme Court of North Dakota

November 7, 1900

Appeal from District Court, Cavalier County; Fisk, J.

Action by the state, on the relation of P. J. McClory, assistant attorney general, against N. McGruer, to abate a liquor nuisance. From the judgment both parties appeal.

Reversed. Judgment ordered for plaintiff.

Judgment reversed, and judgment entered in favor of plaintiff.

Bosard & Bosard, for appellant.

Templeton & Rex, and F. W. McLean, for respondent.

WALLIN J. BARTHOLOMEW, C. J., concurring in the result.

OPINION

WALLIN, J.

This action was instituted by P. J. McClory, as assistant attorney general, under section 7605 of the Revised Codes of 1895, to abate an alleged nuisance created by selling and keeping for sale intoxicating liquors as a beverage. The action was tried to the court without a jury, and after the evidence was submitted counsel for plaintiff framed and presented to the trial court findings of fact, -- 18 in number, -- and requested said court to make and file such findings, and further requested the court to make and file certain conclusions of law in plaintiff's favor, and to direct the entry of a judgment for the relief demanded in the complaint. Pursuant to such request, the trial court made and filed each and all of plaintiff's said findings of fact but refused to find the conclusions of law as requested by plaintiff's counsel; whereupon the trial court made other conclusions of law favorable to the defendant, and thereby adjudged that under the facts so found the trial court did not have jurisdiction over the subject-matter of the action, and the court further directed that the action be dismissed, with costs against the plaintiff. Pursuant to such findings, judgment was entered dismissing the action, with costs. From such judgment the plaintiff appealed to this court, and subsequent to the plaintiff's appeal the defendant also perfected an appeal to this court from said judgment. The notice of appeal served by defendant embraced the following language: "By this appeal the defendant seeks to review only the findings made by the court in behalf of plaintiff at plaintiff's request." A statement of the case was settled in the District Court, and the same is incorporated in the record sent to this court. The statement of the case embraces certain papers, the material features of which may be summarized as follows: (1) A paper showing that defendant, at the opening of the trial, objected to the introduction of any evidence under the complaint, for the reason that the complaint did not state a cause of action, in this: (a) That an injunctional proceeding will not lie against a druggist holding a permit under the laws of this state; (b) upon the ground that the court has not jurisdiction of the subject-matter; (c) upon the ground that the complaint does not charge violations of the law with sufficient certainty. (2) At the trial the defendant further objected to the introduction of any evidence of sales of liquors to any person whomsoever except to one Ed Gleason, for the reason that sales to no other persons were charged in the complaint. (3) The introduction of evidence of sales to minors and habitual drunkards was objected to upon the ground that sales to such persons were not alleged. (4) Objections were made to the introduction of evidence upon various other grounds, but these need not be particularly set out, as the same are wholly immaterial for reasons which will be hereafter stated. (5) The statement of the case further embodied exceptions to 12 of the said findings of fact made at the plaintiff's request. All of said exceptions are made upon the ground that there is no competent evidence tending to support the same; all of said evidence having been objected to by the defendant. (6) The statement embraces, also, specifications of particulars in which the defendant seeks to point out wherein said 12 findings of fact are not justified by the evidence, and this on the ground that the evidence was incompetent, and was received against the defendant's objections thereto. (7) The statement further contains a list setting out 12 "specifications of errors of law." These specifications are aimed also at the court's findings of fact, including findings numbered from the fifth to the sixteenth, inclusive. These alleged errors of law are placed upon the ground that such facts, respectively, were erroneously found, for the reason that the evidence offered to sustain the same was incompetent, and was received against objection made by the defendant.

The complaint is as follows: "(1) That at the city of Langdon, in the county of Cavalier, and state of North Dakota, the defendant herein, in a building situated on lot six (6) of block twenty-seven (27) of the original townsite of Langdon, now keeps and maintains a bar and place for the sale of intoxicating liquor as a beverage; that at said place the said defendant has maintained, ever since the 1st day of January, 1896, a public bar, equipped with glasses, bottles, and has during all of said time and he does now keep therein beer, wine, whisky, brandy, and divers and sundry other fermented, malt, and vinous liquors, -- all of which said liquors are intoxicating; and the defendant keeps the same in said building for the purpose and with the intent of selling the same to be used and drank as a beverage, and for the purpose of selling the same in violation of law. (2) That the defendant has sold intoxicating liquors at said place to divers and sundry persons, and particularly as follows: Alcohol to Ed Gleason on July 7, 1898; and is now engaged in selling such liquors continuously and as a common practice and business, and will continue so to do, as plaintiff is informed and verily believes, unless restrained by the proper order of this court. (3) That said defendant, N. McGruer, has permitted said intoxicating liquors to be used and drank upon the said premises, and over his said bar, and now allows the same to be used and drank over said bar; and he, the said defendant, knowingly permits persons to resort to said place for the purpose of drinking intoxicating liquors as a beverage. (4) That the defendant, N. McGruer, is now, and at all the times hereinafter and hereinbefore mentioned has been, the owner in fee of the building situated on lot six (6) of block twenty-seven (27) of the original townsite of the city of Langdon, in Cavalier county, state of North Dakota, wherein the saloon operated by the said N. McGruer is kept as aforesaid. (5) That a permit has been issued to said defendant, N. McGruer, by the county judge of said Cavalier county of Cavalier, N.D., but that said liquor was sold in violation of said permit. (6) That the said N. McGruer will continue to occupy said place, and to keep and use the same as a place for the sale of intoxicating liquors, as aforesaid, and a common saloon, indefinitely in the future unless restrained by the injunction and decree of this court." The relief demanded in the prayer of the complaint was that such nuisance should be abated, and the defendant enjoined from further maintaining the same, for general relief, and for costs. The answer to the complaint consisted of denials of all the material features of the complaint.

This action having been tried in March, 1899, by the court without a jury, is, as to its procedure in the court below and in this court, governed by the provisions of section 5630 of the Revised Codes of 1899; and with reference to the matter of procedure an important preliminary question is presented. The record does not embrace the evidence presented to the court below, or any part thereof; nor does the statement of the case embrace a demand by either of the appellants of a trial anew in this court either of the entire case or of any specified question of fact in the case. In view of these omissions, the language of said section 5630 is directly applicable to this case. The section declares, with reference to a statement of the case, that the appellant "shall specify therein the questions of fact that he desires the Supreme Court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court." It is further declared that the Supreme Court "shall try anew the questions of fact specified in the statement, or in the entire case." Under the language of said section it is clear that upon this record this court is without power either to try anew the entire case, or any particular question of fact in the case. The statute is further explicit to the point that, in the absence of specifications, and of any demand of a retrial in this court, this court is compelled to hold that all questions of fact decided below were properly decided. Upon this point see Bank v. Davis, 8 N.D. 83, 76 N.W. 998. In the case cited this court used the following language: "Under the amendment we are considering such specifications as are required by former statutes and by the rules of this court are no longer required in actions tried below without a jury, and which come to this court for a retrial upon the merits." See 8 N.D. 83 at 86, 76 N.W 998 at 1000. In the case at bar no question of fact presented in the record can be retried, and it is, therefore, clear in this case that the list of alleged errors of law contained in the statement and based upon the rulings made upon the admission of the evidence are not pertinent, nor does the same subserve any useful purpose; and this is true likewise of the list of specifications above mentioned, in which it is sought to point out wherein the several findings of fact are not justified by the evidence. It must follow that the said alleged...