State v. Terry

• Decision Date: 12 November 1917
• Citation: 99 Wash. 1,168 P. 513
• Court: Washington Supreme Court
• Parties: STATE v. TERRY.

168 P. 513

99 Wash. 1

STATE v. TERRY.

Supreme Court of Washington

November 12, 1917

Department 2. Appeal from Superior Court, King County; John S. Jurey Judge.

Proceeding by the State against Guiseppe Colanzelo and others, to punish defendants for contempt. From the judgment, the defendant May Terry appeals. Affirmed.

Gill, Hoyt & Frye, of Seattle, for appellant.

Alfred H. Lundin and Lane Summers, both of Seattle, for respondents.

ELLIS C.J.

Defendants were charged with contempt in violating, with knowledge and notice thereof, a permanent injunction issued from the superior court of King county on November 2, 1915, in a red light abatement case. Defendants Colanzelo were the owners of the property involved; defendant Terry their tenant. The proceedings were by information, attachment, arrest, and trial before the court without a jury upon oral testimony pursuant to Rem. Code, § 946-4. The cause was dismissed as to defendant Rosa Colanzelo. The other defendants were adjudged guilty. Defendant Guiseppe Colanzelo was fined $200. On a showing which the trial court deemed sufficient his fine was afterward remitted. Defendant Terry was fined $300 and sentenced to serve three months in the county jail. She moved for a new trial. The motion was overruled. She appeals.

The decree in the original abatement case, so far as here material, was as follows:

'Now, therefore, it is hereby considered, ordered adjudged and decreed that defendants * * * and each of them and their agents, servants, and all other persons acting by through or under them, and all other persons whatsoever, be, and they hereby are perpetually restrained and enjoined from causing, participating in, or permitting, directly or indirectly, any act of lewdness, assignation, or prostitution in, about, or upon the property hereinafter described; and that the land, and buildings thereon, and its contents, all hereinafter described, be, and the same hereby are, declared a nuisance and forever enjoined as such; and that any and all acts of lewdness, assignation, or prostitution, or practice thereof and the resort thereto, in, about, and upon said property, be, and the same hereby are, prohibited and enjoined at any and all times.'

Appellant was not a party to that suit, and it is admitted that she was never served with a copy of the final decree rendered therein. She contends that she was not properly subject to summary punishment for contempt: (1) because she was not a party to the abatement proceedings; (2) because no copy of the injunctional order was served upon her; (3) because the evidence of actual knowledge of the injunction on her part was insufficient; and (4) that in any event the punishment imposed was excessive.

It may be stated as a general rule that one not a party to the injunction suit cannot be charged with contempt in violating the injunction in the absence of service upon him of the injunctional order or a showing that he had actual knowledge thereof. Garrigan v. United States, 163 F. 16, 89 C. C. A. 494, 23 L. R. A. (N. S.) 1295. To this general rule there is, however, an exception resting in sound reasons and supported by authority. Where the decree of injunction is not only in personam against the defendants in the injunction suit, but also operates in rem against specific property, or rather against a given illegal use of such property, the decree is a limitation upon the use of the property of which all subsequent owners, lessees, or occupants must take notice. In such a case the decree, if broad enough enough in its terms to enjoin all persons, is sufficient as a public record to impart constructive notice to all persons. The following cases so holding are based upon statutes declaring premises used for the unlawful sale of intoxicating liquors to be nuisances and authorizing perpetual injunctions to be entered against the use of such places for such purposes. The only essential difference between the statutes involved and our red light law is in the character of the use prohibited. Silvers v. Traverse, 82 Iowa, 52, 47 N.W. 888, 11 L. R. A. 804; Dermedy v. Jackson, 147 Iowa, 620, 125 N.W. 228; Seidlitz v. Jackson (Iowa) 125 N.W. 231; State v. Porter, 76 Kan. 411, 91 P. 1073, 13 L. R. A. (N. S.) 462, and note. See, also, 6 R. C. L. p. 504, § 16.

Appellant cites and relies upon the more recent Iowa case of Harris v. Hutchinson, 160 Iowa, 149, 140 N.W. 830, 44 L. R. A. (N. S.) 1035, urging that it limits the earlier Iowa decisions to cases in which the filing of a complaint affecting real estate operates under a general statute of that state as a notice of lis pendens, and therefrom argues that an injunctional decree binding real estate in this state cannot be effective as against third parties unless lis pendens was filed when the injunction suit was commenced. Obviously this is only true as to persons dealing with the property pending suit and before decree. Neither the statute of this state providing for the filing and lien of notice of lis pendens, nor the statute of Iowa giving the same effect to the filing of a complaint affecting real estate was ever intended to import into the final decree a character as affecting property in rem which it would not otherwise possess. As to persons dealing with the property subsequent to decree it is the character of the decree which determines their rights. If it is a decree in rem it binds not only the parties, but third persons. This is recognized in the case of Harris v. Hutchinson. Speaking of the earlier case of Silvers v. Traverse, supra, it is there said:

'It is true that in this opinion the following words were used: 'The decree was sufficiently broad in its terms to enjoin all persons from maintaining a nuisance on the premises therein described, and it was sufficient, as public record, to impart constructive notice to all persons.' It is evident that those words were used with reference to the facts in that particular case, and where it says, 'It was sufficient as a public record to impart constructive notice to all persons,' it evidently meant, and should be understood as meaning, all persons dealing with the property as purchaser, or lessee, or dealing with the property itself.'

The sum of the decision in Harris v. Hutchinson is that a person employed as a bartender by the occupant of premises which had been enjoined from use for saloon purposes is not affected with constructive notice of the decree so as to be subject to a charge of contempt for violating it, and this simply because he is not a person dealing with the property itself, either as a purchaser or lessee or occupant. It does not overrule or modify the decision in Silvers v. Traverse, supra, but distinguishes it on that ground alone, clearly recognizing as sound and impliedly reaffirming the doctrine of the Silvers Case.

The exception to the rule requiring notice of the injunction in order to bind third persons is not peculiar to injunctions against liquor nuisances. Where the injunction is in rem affecting specific property, it binds, not only the parties to the suit, but persons in privity with such parties as subsequent purchasers and lessees. Ahlers v. Thomas, 24 Nev. 407, 56 P. 93, 77 Am. St. Rep. 820; Harris v. Hutchinson, supra; 2 High on Injunctions (4th Ed.) § 1440a. See, also, State ex rel. Jackson v. City of Coffeeville, 90 Kan. 164, 133 P. 711, 712.

The Iowa liquor nuisance law is the direct progenitor of our red light law. State ex rel. Kern v. Jerome, 80 Wash. 261, 264, 141 P. 753. A reading of the red light law (Rem. Code, § 946-1 et seq.), makes it too plain for cavil that the proceedings for perpetual injunction thereunder, so far as they are directed against specific property, are proceedings in rem. We have already so construed that law. State ex rel. Kern v. Emerson, 90 Wash. 565, 571 ,574, 155 P. 579, L. R. A. 1916F, 325; State ex rel. Dow v. Nichols, 83 Wash. 676, 677, 145 P. 986; State ex rel. Kern v. Jerome, supra.

We are clear that appellant's first two contentions are unsound. The decree, being in rem, reaches further than the parties named as defendants. It abates and perpetually enjoins the nuisance, and to that end reaches the property itself and binds all persons thereafter dealing with the property. Silvers v. Traverse, supra. As said by the Supreme Court of Kansas in State v. Porter, supra:

'The decree of injunction was against the defendants in that action, and, in a sense, was ad rem against the property, or rather against a certain illegal use of the property. It cut off perpetually the use

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