State v. Werner
| Decision Date | 08 May 1909 |
| Docket Number | 16,041 |
| Citation | 80 Kan. 222,101 P. 1004 |
| Parties | THE STATE OF KANSAS v. HENRY WERNER |
| Court | Kansas Supreme Court |
Decided January, 1909.
Error from Leavenworth district court, JAMES H. GILLPATRICK, judge.
Judgment reversed and cause remanded for further proceedings.
SYLLABUS BY THE COURT.
INJUNCTION--Liquor Nuisance--Restraining Order by Probate Judge--Contempt. In a proceeding brought under chapter 338 of the Laws of 1903 to enjoin the maintaining of a place where intoxicating liquors are sold and kept for sale a temporary restraining order may be granted when the suit is begun; and in case of the absence of the district judge from the county or of his disqualification or inability to act when the application for the injunction is made the probate judge may grant a temporary restraining order, and the disobedience of such an order may be punished as a contempt.
Fred S Jackson, attorney-general, and Charles D. Shukers, special assistant attorney-general, for The State.
Dawes & Rutherford, for the defendant in error.
The state brought a suit against Henry Werner to enjoin him from maintaining a place where intoxicating liquors were sold and kept for sale in violation of law. When the suit was begun the district judge was absent from the county, and hence the petition and verified application were presented to the probate judge, who granted a preliminary injunction, or restraining order. The defendant was duly served with summons, and also with the order of injunction. Later the defendant was cited before the court to answer an accusation that he was still maintaining a nuisance in violation of the injunction order previously issued by the probate judge. His answer to the charge of contempt was that the probate judge had no authority to grant an injunction or restraining order, and, as the order issued by him was void, there was no contempt. On a demurrer to the answer the court sustained the contention of defendant and dismissed the contempt proceedings. The state complains of this ruling.
The statute authorizing a proceeding by the state to abate and enjoin the nuisance above mentioned provides that an injunction may be granted at the commencement of the suit without requiring a bond, and that any person violating the terms "of any injunction" granted in such suit shall be punished for contempt. There appears to have been a contention by the defendant that the order made was what is designated as a "temporary injunction," an order which the probate judge has no authority to issue. Formerly a probate judge had authority to allow a temporary injunction, and this, under other provisions of the code, might be continued in force until a review of the same was had in the supreme court. The legislature of 1901 amended the code in this particular by providing that only temporary restraining orders should be granted by the probate judge. (Laws 1901, ch. 281; Civ. Code, § 239.) While the order issued in this case has some of the characteristics of a temporary injunction, it is open to the interpretation that it is an order that the probate judge had authority to grant, namely, a temporary restraining order. The accusation filed by the state treated the order granted as a temporary restraining order, and the district court specifically decided that the probate judge had no authority to issue a temporary restraining order. The question then is fairly before the court whether the probate judge is authorized to issue temporary restraining orders in such cases.
The statute providing for abating and enjoining a nuisance, as will be observed, does not undertake to prescribe methods for enforcing the remedy of injunction in this class of nuisances, and hence the general provisions of the code regulating the granting of injunctions apply. The kind of injunction to be issued at the commencement of such a suit is not stated. The code provides for perpetual and...
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Chapman v. Boynton
...to Federal Constitution, Fritz v. State, 80 Kan. 168, 101 P. 1013; temporary injunction may be granted by a probate judge, State v. Werner, 80 Kan. 222, 101 P. 1004; see, also, Kansas Wheat Growers' Ass'n v. Schulte, 113 Kan. 672, 684, 216 P. 311; Norton v. Board of County Com'rs of Saline ......
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Guardian Life Ins. Co. of America v. State Bd. of Equalization
...or hearing. Once served, it must be obeyed, and the defendant disregarded it at his peril. See 32 C.J. 373, § 633; also State v. Werner, 80 Kan. 222, 101 P. 1004. Nor does the fact that several terms of court have intervened since its issuance, without any trial or further order with refere......
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Scholtz v. American Surety Co. of New York
...C. S., it was nevertheless an injunction as defined by sec. 6768. (MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671; State v. Werner, 80 Kan. 222, 101 P. 1004; Miles v. Edwards, 6 Mont. 180, 9 P. Montgomery v. Gilbert, 24 Mont. 121, 60 P. 1038; Prader v. Grim, 13 Cal. 585.) The bond furn......
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In re S. O. Sharp
... ... approved by the clerk, such injunction, if issued without ... such bond is wholly void. (The State, ex rel., ... v. Comm'rs of Rush Co., 35 Kan. 150, 10 P. 535; [87 ... Kan. 508] The State, ex rel., v. Comm'rs of ... Kearny Co., 42 Kan. 739, 22 ... cited it should be deemed a temporary injunction rather than ... a mere restraining order. In The State v. Werner, 80 ... Kan. 222, 101 P. 1004, it was held that a restraining order ... granted in a nuisance case by the probate judge, the district ... judge ... ...