State v. Lew
| Decision Date | 29 August 1946 |
| Docket Number | 29870. |
| Citation | 172 P.2d 289,25 Wn.2d 854 |
| Parties | STATE v. LEW. |
| Court | Washington Supreme Court |
Department 2
Rehearing Denied Nov. 15, 1946.
Harry Lew was charged in an amended information with contempt. From a judgment dismissing the amended information, the State appeals.
Reversed and remanded with instructions.
Appeal from Superior Court, King County; Howard M. Findley, judge.
Lloyd Shorett and Max R. Nicolai, both of Seattle, for appellant.
Clarence J. Coleman, of Everett, and George R. Stuntz, of Seattle, for respondent.
This is an appeal by the state of Washington from a judgment made and entered by the superior court for King county, on January 9 1946, dismissing an amended information purporting to charge defendant, Harry Lew, with contempt, in that he willfully violated a lawful mandate of the superior court made and entered in cause No. 356344 of the superior court records for King county.
A bill of exceptions was filed in this court by the state (appellant) on April 9, 1946, and on April 7, 1946, respondent, Harry Lew, filed a motion to strike the bill, dismiss the appeal, and affirm the judgment. On or about May 17, 1946, which apparently was after the briefs herein were printed, this court granted the motion to strike the bill of exceptions, but denied the motion to dismiss the appeal. We do not have in this record, then, either a bill of exceptions or statement of facts.
Respondent states on page 5 of his brief:
It is apparent that the only purpose of the plea in abatement was to raise the question of whether or not the injunctive order in cause No. 356344 was valid or void, as a matter of law, without the necessity of going to trial, and respondent so states on page 10 of his brief. We quote:
(Italics ours)
As appears from the record, the facts upon which the trial court concluded as a matter of law that the injunctive order was void and therefore constituted no basis for the contempt proceedings were contained in the pleadings considered by the court. Of course, in a contempt proceeding, the trial court, as stated in State ex rel. Sander v. Jones, 20 Wash. 576, 56 P. 369, 370, 'will take judicial notice of its own order granting the injunction.'
We are of the opinion that we have Before us in the transcript, properly certified to by the clerk of the superior court for King county, the same record that was considered by the trial court in reaching its conclusions, and, to quote from Hodgen v. Department of Labor and Industries, 194 Wash. 541, 544, 78 P.2d 949, 951, '* * * in all cases, however tried, there is the question whether the judgment is proper and valid under the law.'
The amended information states:
'I, Lloyd Shorett, prosecuting attorney in and for the county of King, state of Washington, come now here in the name and by the authority of the state of Washington, and by this information do accuse Harry Lew of contempt of court, committed as follows, to-wit:
'That, on or about September 9, 1945, the defendant, Harry Lew, wilfully and unlawfully disobeyed a lawful mandate of the superior court for the county of King, to-wit: An injunction entered on the 16th day of November, 1944 in cause No. 356344 enjoining the defendant, Harry Lew, his agents, servants and all other persons acting by or through said Harry Lew, for the period of one year, from carrying on gambling on the premises known as 10315 East Marginal Way, Seattle, King county, Washington, or permitting to be maintained upon said premises any gambling paraphernalia; by wilfully and unlawfully permitting gambling to be carried on on said premises and by wilfully and unlawfully permitting to be maintained gambling paraphernalia upon said premises in the county of King, state of Washington.'
To this information, respondent filed a plea in abatement and a demurrer. The plea in abatement states in paragraph 1: 'That there is no authority in law for the issuance of the information herein.' In paragraph 2, respondent, after setting out the charging part of the information, alleges in substance that the order which respondent is, by the information, accused of willfully violating was entered in a civil proceeding to abate certain real premises, and that the procedure to procure the abatement is statutory, specific and exclusive; that if the present action is permitted, respondent will be harassed by a double prosecution, and if convicted, he will be subjected to double punishment; that there is now pending in the superior court for King county civil cause No. 356344, an action to forfeit the bond of one thousand dollars ordered by the court in that cause.
It is further alleged in paragraph 3 of the plea that the order granting injunction, referred to in the amended information, is an invalid order, and it being invalid, respondent is under no legal obligation to obey it; therefore, if he disobeys the provisions thereof, he cannot be held in contempt by the superior court. It is further alleged that the order granting injunction was issued in what purports to be a civil, or quasi-criminal, proceeding to abate real premises; that the procedure for the abatement of real premisses is strictly statutory, and must be construed solely in the light of statutory enactments, and that no authority can be conferred upon the superior court ot issue any orders pertinent thereto, unless the statutes of the state of Washington permit; that the statutes of this state do not authorize the issuance of an injunction in such a proceeding.
It is further alleged that no adjudication was ever made in cause No. 356344 that a nuisance existed, and that, since no such adjudication was made, there is no statutory provision or legal provision confirming authority upon the superior court to issue the order granting injunction; that since there has been no adjudication that a nuisance does exist, the contempt action is premature, and is an attempt to try out in a criminal proceeding a civil matter now pending Before the superior court.
Other allegations are made in the plea which we do not deem it necessary to set out.
Respondent's demurrer to the information sets up seven grounds. We mention two of them: (1) That the court has no jurisdiction of the person of the defendant or of the subject matter of the action; and (7) that the injunction set forth in the information was invalid in that the court did not have the authority to issue such injunction, and that there was no provision in law to permit the issuance of such injunction.
Appellant, state of Washington, filed a demurrer to the plea in abatement, and also an answer.
It does not appear that the trial court considered appellant's demurrer to the plea in abatement, nor does it appear that appellant made any objection to the filing of the plea or to the trial court's considering it. Appellant, in its reply brief, at page 7, states:
'The court considered the information, respondent's plea in abatement and demurrer, and appellant's answer to respondent's pleadings.'
Appellant's answer, in paragraph 1, denies each and every allegation contained in respondent's plea in abatement. In paragraph 2, appellant alleges that on September 20, 1944, appellant filed summons and petition for abatement and injunction in cause No. 356344 (giving its title), after which appellant quotes from paragraphs 4, 5 and 6 of the petition, which quotations set forth the facts upon which the injunctive relief was asked. The prayer of the petition is then set out, and is as follows:
'Wherefore, relator prays for relief as follows:
'1. That an injunction be issued perpetually enjoining the above defendants, their agents, servants, and all other persons acting by, through or under them, from maintaining or continuing said nuisance at the premises described in paragraph II hereof, and elsewhere in this state;
'2. That a perpetual injunction issue against the premises described in paragraph II hereof, and any and all buildings located thereon, perpetually restraining the practice and conduct of gambling thereon and therein;
The answer then alleges that the summons and petition were personally served on respondent Harry Lew on September 20, 1944.
It is further alleged that on November 16, 1944, there was entered and filed in cause No. 356344 the following order:
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