State ex rel. Nagle v. Naughton

• Citation: 63 P.2d 123,103 Mont. 306
• Decision Date: 16 November 1936
• Docket Number: 7536.
• Parties: STATE ex rel. NAGLE, Atty. Gen., v. NAUGHTON et al.
• Court: United States State Supreme Court of Montana

63 P.2d 123

103 Mont. 306

STATE ex rel. NAGLE, Atty. Gen., v. NAUGHTON et al.

No. 7536.

Supreme Court of Montana

November 16, 1936

Rehearing Denied Dec. 28, 1936.

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Action by the State, on the relation of Raymond T. Nagle, Attorney General of the State, against Peter J. Naughton and others. From a judgment of dismissal, the plaintiff appeals.

Reversed and remanded with directions.

Raymond T. Nagle, Oscar A. Provost, and Jeremiah J. Lynch, all of Helena, for appellant.

William Meyer, of Butte, for respondents.

LEIPER District Judge (sitting in place of SANDS, Chief Justice absent on account of illness).

By this action the State of Montana, through its Attorney General seeks to abate a nuisance said to exist, an injunction restraining the continuance thereof, and an order closing the premises so used for one year and making disposition of the property used in operating such nuisance, as provided by section 11129, Revised Codes. The defendants answered. The cause was tried before the court without a jury. Plaintiff and defendants having rested, counsel for the defendants moved for a dismissal of the action, and the state moved for judgment in accordance with the prayer of the complaint. Thereafter the court made its finding as follows: "This day the action of the defendants to dismiss the proceedings is granted. The motion of plaintiff for judgment is denied and judgment in favor of defendants is ordered entered." Thereafter, and on December 9th, judgment was entered for defendants, dismissing the action. This appeal is from that judgment.

The complaint alleges and the answer admits that Raymond T. Nagle is the Attorney General of the State of Montana; that the defendants John H. Curtis, Jr., George D. Curtis, and Anna E Lynch are the owners of that certain building situated upon the west 38 feet of lot 5, and the east 10 1/2 feet of lot 6, in block 39, Butte townsite, in the city of Butte, Silver Bow county, State of Montana, according to the official plat thereof, together with appurtenances situated thereon; that defendants Peter Naughton and Joseph Lyden are, and at all times in the complaint mentioned have been, the owners and proprietors of the business conducted within that part of the ground floor of such building known as the Crown Cigar Store, and numbered 110 East Park street, Butte, Mont., and that they are the lessees of such part of that building.

The complaint alleges that the defendants Naughton and Lyden, during the months of July and August, 1935, within the building hereinabove described, conducted games commonly known as stud poker, draw poker, pangeni, and a game of dice, all of which were played and conducted for money, contrary to the law; that these defendants, as such lessees, within the building above mentioned, permitted a punch board to be run and conducted, and that they ran and conducted the same for the disposal and distribution of property by chance, being prizes of divers and sundry sorts; that the building above mentioned has been, and is, used and maintained as a place where gambling of the kinds hereinbefore mentioned is and was carried on; and that these defendants will continue to use such building as a place where gambling will be carried on and conducted contrary to law. Attached to the complaint, and by reference made a part thereof, are the affidavits of John C. Richardson and William E. Nance, in which affidavits are set forth specific instances, together with the dates, upon which gambling has been carried on within such building and intoxicating liquor has been sold therein. The defendants answered denying these allegations. Trial of this cause was commenced on November 29, 1935.

This action is civil in its nature, and in order to prevail the plaintiff must prove by a preponderance of the evidence the material allegations of the complaint. By its judgment the trial court determined that the burden had not been sustained by the plaintiff. Where, as here, a cause is tried to the court, its judgment has the same effect as the verdict of a jury. This is a suit in equity, and the rule is well established that the judgment of the trial court will not be disturbed unless the evidence preponderates against it. In a situation such as here presented, it becomes the duty of this court to review the evidence presented by the record; and if this court determines that the findings of the trial court are not sustained by a preponderance of the evidence, to set such findings and judgment aside and "makes its own conclusions."

Speaking of these matters generally, this court, in the case of Giebler v. Giebler, 69 Mont. 347, 222 P. 436, 438, said: "Finally it is argued that the trial court determined in favor of the defendant the issue raised upon the question of desertion, and that this court ought not to disturb the finding. This being a suit in equity, the rule obtains that the decision of the trial court will not be disturbed unless the evidence preponderates against it. Kummrow v. Bank of Fergus County, 66 Mont. 434, 214 P. 1098. But what is to be said of a case of this character where the uncontradicted evidence establishes the plaintiff's cause of action, and where the record is barren of any suggestion that plaintiff or any of his witnesses is unworthy of belief, but, notwithstanding these facts, the trial court finds against the plaintiff? Where, as in this instance, a cause is tried to the court, its decision or finding has the same effect as the verdict of a jury, and, when contrary to or not sustained by the evidence, will be set aside. 20 R.C.L. p. 280, § 62. The rule that the trial court may not disregard uncontroverted credible evidence is fundamental. Haddox v. Northern Pac. Ry. Co., 43 Mont. 8, 113 P. 1119. This court has not hesitated to set aside findings contrary to the preponderance of the evidence, and this we deem to be the duty imposed by our Bill of Rights, Section 6, art. 3, Constitution. Section 8805, Revised Codes 1921, provides: 'In equity cases, and in matters and proceedings of an equitable nature, the Supreme Court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless, for good cause, a new trial or the taking of further evidence in the court below be ordered.' Speaking of that statute we said: 'This court has power, and it is its duty, so far as it may, exercising a due regard for the findings of the district court, based, as they are, upon the testimony of witnesses delivered ore tenus in the presence of the court, to reach its own conclusions, and to declare upon the rights involved accordingly. Owing to the advantageous position of the trial court, due to the conditions just adverted to, this court will naturally hesitate to overturn findings based upon substantially conflicting evidence which would justify an inference in favor of either side of the controversy; but where the conflict is trifling or unsubstantial, or where the evidence preponderates decidedly against the finding, this court may, looking to the nature of the evidence, proceed to examine it, and make up its own conclusion.' Bordeaux v. Bordeaux, 32 Mont. 159, 80 P. 6." See, also, State ex rel. Lamey v. Young, 72 Mont. 408, 234 P. 248; Lasby v. Burgess, 88 Mont. 49, 289 P. 1028; Sylvain v. Page, 84 Mont. 424, 276 P. 16, 63 A.L.R. 528; Laundreville v. Mero, 86 Mont. 43, 281 P. 749, 69 A.L.R. 416; Shepherd & Pierson Co. v. Baker, 81 Mont. 185, 262 P. 887.

At the front of the room occupied by the Crown Cigar Store is a cigar counter, at which it is charged the punch boards and dice games are operated. Back of this cigar counter, and toward the rear of the room, is a bar about 40 feet long, together with a back bar. It appears that beer is dispensed here and intoxicating liquors sold. At the rear of the building is a room about 28 by 60 feet, in which it is charged the games of stud poker, draw poker, and pangeni are played. In the card room are six or seven card tables, together with some chairs, the precise number of which the evidence does not show. This room is separated from the bar by a partition, and along this partition and on the side next to the front of the room is a lunch counter.

Section 11124, Revised Codes, provides: "Every building or place used for the purpose of lewdness, assignation, or prostitution, and every building or place wherein or upon which acts of lewdness, assignation, or prostitution are held or occur, and any building wherein gambling is carried on or occurs, contrary to any of the laws of the state of Montana, or wherein any wine rooms are conducted or maintained, contrary to the laws of the state of Montana, or wherein any opium or coca leaves, their salts, derivatives, and preparations thereof are sold or given away or used contrary to the laws of the state of Montana, is a nuisance which shall be enjoined, abated, and prevented as hereinafter provided, whether the same be a public or private nuisance."

We have examined the testimony very carefully. It is quite voluminous. We shall not attempt to set it forth at length. No justifiable reason exists for so doing. Suffice it to say that witnesses Nance and Richardson were employed from November 1, 1935, to the date of this trial by the Montana Liquor Control Board; that for about five months prior thereto each had been employed as an investigator for the Attorney General of this state; that each had been employed as an investigator for private persons and concerns and for the federal government for a number of years prior...