State ex rel. Bowman v. Fipps

Shabp, J. The difference between the judgments tendered and the judgment which the court signed is twofold: (1) The court’s judgment directed that the premises be returned to the owners; the tendered judgment declared the place of business a nuisance. (2) The court’s judgment made no provision for the inclusion of attorney’s fee in the costs of the proceedings; the tendered judgment directed that the costs, including a fee in the “sum of $.” for John A. Dwyer, be paid from the proceeds of the sale of the personal property of the defendants Fipps and Luther Powell. Counsel for plaintiff stressfully contends that the operation on the premises of a nuisance as defined by G.S. 19-1 having been established, the court should have ordered “the effectual closing of [537] the building or place against its use for any purpose ... for a period of one year,” as provided by G.S. 19-5. This contention is without merit, and heretofore has several times been decided against plaintiff. A proceeding to abate a nuisance is not a proceeding in rem against the property itself, but is a proceeding in personam. Bowman v. Malloy, 264 N.C. 396, 141 S.E. 2d 796; Sinclair, Solicitor v. Croom, 217 N.C. 526, 8 S.E. 2d 834. The owners of Luther’s Place were never made parties to the proceeding; Dozier Powell, the owner of Fipps’ Place, was originally made a party, but during the trial, plaintiff took a voluntary non-suit as to him. Before the court can padlock a lessor-owner’s premises and deprive him of the possession of his property on account of a nuisance maintained thereon by his tenant, it must be established by verdict in a proceeding to which the owner is a party that he knew, or could by due diligence have known, that the nuisance was being maintained. Bowman v. Malloy, supra; Sinclair, Solicitor v. Croom, supra; Barker v. Palmer, 217 N.C. 519, 8 S.E. 2d 610; Habit v. Stephenson, 217 N.C. 447, 8 S.E. 2d 245. As provided in G.S. 19-6, the court directed that the proceeds from the sale of the personal property used in connection with the established nuisances be applied to the payments of the costs of these actions. He did not include in these costs an attorney’s fee, although one was requested in the tendered judgment. The allowance of a fee was a matter in the discretion of the trial judge. G.S. 19-8. See Hoskins v. Hoskins, 259 N.C. 704, 131 S.E. 2d 326. No abuse appears. The judgment of the court below is Affirmed.