State v. Glass

• Decision Date: 11 November 1916
• Docket Number: 20821
• Citation: 99 Kan. 159,160 P. 1145
• Parties: STATE v. GLASS ET AL.
• Court: Kansas Supreme Court

160 P. 1145

99 Kan. 159

STATE v. GLASS ET AL.

No. 20821

Supreme Court of Kansas

November 11, 1916

Syllabus

The state of Kansas is the plaintiff in an action to abate an intoxicating liquor nuisance, and it is not necessary that the petition show in the title that the action is prosecuted on the relation of any person or officer. The petition is properly signed.

In an action to abate a liquor nuisance, a cause of action was stated in a petition which alleged that at the place described a nuisance, as defined in the statute, was maintained with the knowledge, permission, and consent of the defendants, who owned the property.

The evidence was sufficient to warrant the judgment rendered.

The finding of the court that the defendants had knowledge of the unlawful use of their premises was sustained by the evidence.

An injunction will lie against the owner of premises who knowingly permits a nuisance to be maintained thereon.

The granting of permission to amend a petition so as to ask for additional attorney’s fees is within the sound discretion of the trial court.

Attorney’s fees may be allowed without proof of the value of services rendered, where the services were rendered in the presence of the court.

Appeal from District Court, Labette County.

Action by the State against C. A. Glass and another. From judgment for plaintiff, defendants appeal. Affirmed.

John Madden and C. E. Cooper, both of Parsons, for appellants.

S. M. Brewster, Atty. Gen., W. P. Montgomery, Asst. Atty. Gen., and Elmer Columbia, of Oswego, for the State.

OPINION

MARSHALL, J.

The plaintiff obtained an injunction against the defendants under the intoxicating liquor law of this state (Gen. St. 1909, § § 4361-4402), and the defendants appeal.

1. The title to the action, as set out in the petition, is:

"The State of Kansas, Plaintiff, v. A. A. Glass and C. A. Glass, Defendants."

The opening statements of the petition are:

"Now comes the plaintiff herein, the state of Kansas, by W. P. Montgomery, Assistant Attorney General, of Labette county, Kan., and for cause of action against the said defendants, and each of them, alleges."

The petition is signed, "W. P. Montgomery, Attorney for Plaintiff," and is verified on information and belief. The defendants contend that the petition is insufficient because the action is not prosecuted on the relation of W. P. Montgomery, and because the petition is not signed by W. P. Montgomery as Assistant Attorney General. In Pottenger v. State ex rel., 54 Kan. 312, 38 P. 278, an action to enjoin the maintenance of a liquor nuisance, this court, in speaking of the necessity for adding the name of a relator, said:

"We think there is no necessity for adding the name of any person as relator." 54 Kan. 312, 38 P. 278.

The petition is signed by W. P. Montgomery. It shows his official capacity and follows the language generally used in petitions in such actions in this state. This is all that is necessary. The defendants’ objection is not well founded.

2. The defendants objected to the introduction of evidence under the petition on the ground that it did not state facts sufficient to constitute a cause of action. The petition alleged, in substance, that at the place named a nuisance, the character of which was described, was maintained with the knowledge, permission, and consent of the defendants, who owned the property. The petition alleged all that was necessary.

3. The defendants insist that the evidence was not sufficient to warrant the court in rendering judgment against them. The evidence established that the defendants were the owners of the premises in question; that the building situated thereon was divided into several rooms; that each of the defendants occupied a room in the building as a place of business; that intoxicating liquors were sold and drunk on the premises that intoxicated persons congregated and stayed there; that raids on the place were made by the police department of the city of Parsons; that the building was known as "West Point"; and that "West Point" had the general reputation of being a place where intoxicating liquors were sold, drunk, and given away in violation of law. Each of the defendants testified that he knew nothing of the sale of any intoxicating liquor on the premises. The trial court found otherwise, and that finding was justified by the evidence. The objection that the evidence was not sufficient to warrant judgment...