Futrell v. State

Robins, J. The prosecuting attorney of the second judicial district of Arkansas filed in the circuit court a petition as provided for in Chapter 134 of Pope’s Digest of the laws of Arkansas alleging that a beer parlor, dance hall and liquor store operated by appellants, J. F. Futrell and Tom Craft, was a public nuisance and asking that the operation of same be enjoined. A temporary order enjoining the operation of the beer parlor, dance hall and liquor store was made by the circuit judge, on presentation of the petition. The case coming on for final hearing on February 12, 1942, appellants, Futrell and Craft, appeared and by their counsel stated that they “confess judgment and make no further defense to the application for a permanent injunction herein.” The court thereupon rendered judgment finding that ‘ ‘ the Black River Camp, including the liquor store, beer parlor, dance hall and outbuildings” was a public nuisance and ordered that the temporary injunction previously issued be made permanent, and further ordered that all the buildings “be closed and not hereafter be used for any purpose whatever for a period of twelve months except by order of the court.” On June 11, 1942, appellant Futrell filed a petition requesting a modification of the judgment so as to permit the use of the building for “legitimate” purposes. Apparently no action as to this petition was taken at the time. On January 19, 1944, appellant Futrell filed a petition setting up that he was owner of the property involved herein and that on December 20, 1943, the sheriff of Clay county, acting under orders of the prosecuting attorney, placed padlocks on all the buildings situated on said premises. The prayer of the petition was that the sheriff be restrained from interfering with the use of said buildings and that he be directed to remove the padlocks therefrom. To this petition the prosecuting attorney filed a response setting up that the “court issued a permanent padlock order against the defendants and the premises mentioned in said petition, and that said padlock order is still in force and effect.” The case was tried upon a stipulation which inter alia recited that on June 1, .1943, Futrell had leased the premises to J. J. Steel for one year; that Steel had procured proper licenses to sell wine and beer on the premises and was, on December 20, 1943, operating a dance hall and selling wine and beer with certain fixtures of his own, and that on said date the sheriff removed these fixtures, padlocked all doors and placed on the buildings certified copies of the order of court dated February 12, 1942. The court entered an order denying the petition; from which order this appeal is prosecuted. The statutory authority to close up and prohibit the use for any purpose of buildings in which there is maintained a nuisance such as is here involved is contained in §§ 10913 and 10921 of Pope’s Digest of the laws of Arkansas, which empower the court to close a building pending the hearing of the petition for abatement, and §§ 10916 and 10924 which provide that, where an order of abatement has been violated, the court may, in addition to punishing the offender by fine, or by fine and imprisonment, for violation of the order, order the padlocking of the premises involved for a period of one 3mar. Under the statutes referred to the court may enjoin perpetually the maintaining of the nuisance in a building, but the court has no power under the statute to order the closing of the building for any length of time, except during the period'from the granting of the temporary order until the final hearing of the petition for abate.ment, and except b3^ way of additional punishment for violation of the court’s order enjoining the nuisance. In the case at bar, though there may have been a violation of the valid portion of the court’s order (that part forbidding the operation of the dance hall and the sale of beer and wine), there has been no proceeding in court to inquire into or to punish such violation. The court, in directing that the buildings on the premises be closed and not used for any purpose for a period of twelve months, exceeded the powers granted to it under the statute, because, at the time this order was made, there had been no contempt proceedings. Furthermore, on December 20, 1943, the last date on which the sheriff padlocked the doors, the twelve months’ period, during which the buildings were ordered closed for all purposes, had expired, so that, viewed from any standpoint, this action on the part of the sheriff was unauthorized. It is urged by appellant that the order forbidding the operation of the dance hall and the sale of liquor and beer was ineffective as to the tenant Steel, because he was not a party to the original proceeding. This contention cannot be sustained. The court found that the operation of the dance hall, beer parlor and liquor store on the described premises was a nuisance and enjoined same. This was a perpetual order and, unless modified by the court, continued in force, regardless of any change in the ownership or possession of the property. “Where the decree is not only in personam against defendant in the injunction suit, but also operates in rem against specific property, or 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.” 46 C. J. 800. “An injunction restraining the defendant and all other persons from keeping or maintaining a nuisance on certain premises is considered one in rem, which is binding upon subsequent owners, tenants, or occupants, of which they must take notice at their peril . . . ” 39 Am. Jur. 448. The order of the lower court is accordingly reversed and the cause is remanded with directions to the lower court to enter an order, denying the prayer of appellant to modify that part of the original order under which the operation of the dance hall, beer parlor and liquor store is enjoined, but modifying the original order so as to eliminate therefrom all parts thereof under which the use for any purpose of the buildings on the premises is forbidden, and the lower court should direct the sheriff to remove from the buildings the padlocks placed thereon by him. MoFaddin and Knox, JJ., concur.