Black v. State ex rel. District Attorney-General

Mb. Justice Faw delivered the opinion of the Court. This is a suit by the State, on relation of the district attorney general, brought by petition in the circuit court of Knox county, against W. P. Black and S. G. Heiskell, to abate an alleged liquor nuisance. The petition was filed at. 5 o ’clock in the afternoon of May 4, 1914, and averred that W. P. Black was engaged in the unlawful sale of intoxicating liquors, and was conducting such unlawful business in a building belonging to S. G. Heiskell at No. 112 South Central — 531 — street, in the city of Knoxville, and that said unlawful business was a public nuisance. Separate answers were filed by the defendants, denying the material averments of the petition, and defendant Heiskell, in his answer, set up' certain facts relative to his connection with the property described in the petition during the time in question, which will appear later in the statement of certain parts of the evidence bearing on his defense. A temporary injunction was granted at the time the petition was filed, on an ex parte application and without notice to the defendants. Later and after •answers were filed, the cause was heard by the circuit court upon the pleadings and proof offered by both parties, and that court adjudged and decreed that the averments of the petition were.sustained, and awarded injunctions against the defendants, respectively, in accordance with the provisions of section 6 of chapter 2, Acts Extra Session 1913, commonly known as the ‘Nuisance Act.” The decree of the circuit court contained no order of abatement — that is to say — no order directing the removal from the building in ■question of fixtures, supplies, and instrumentalities used for the purpose of conducting such unlawful business as that described in the petition; and the reason for this omission will be apparent when we come to an examination of certain phases of the evidence. Defendant Black did not appeal from the decree of the circuit court. Defendant Heiskell appealed to the ■court- of civil appeals, - and that court affirmed the — 532 — decree of the circuit court. A writ of certiorari having been heretofore granted by a member of this court, the case is before us on assignments of error filed on behalf of Mr. Heiskell, and we will state our conclusions upon the questions which we regard as proper and necessary to be passed upon in order to a determination of the case. 1. A temporary injunction should not have issued without five days’ notice to the defendants; but such; an injunction, issued without notice, was merely erroneous as a matter of procedure, and was not void, or in excess of jurisdiction, and a violation would have been punishable as a contempt. State v. Ragghianti, 129 Tenn., 560, 167 S. W., 689. 2. The court of civil appeals held that this is a law case, tried before the circuit judge without the intervention of a jury, and applied the rule that, where there is any material evidence to support the findings of a circuit judge upon material questions of fact, Ms findings of fact will not be disturbed. This was error, because section 5 of the Nuisance Act (chapter 2 of Second Extra Session 1913) provides: “That proceedings under this act, whether in the chancery, circuit, or criminal courts, shall be conducted in accordance with the procedure of courts of chancery where not otherwise expressly provided herein; and all of said courts having cognizance of such proceedings are hereby given the full jurisdiction and powers of courts of equity with respect to such proceedings.” ■ . — 533 — It must follow, as a logical sequence from the above-■qnoted provisions of the statute, that the appellate courts, in reviewing this case, will he governed by the rules applicable to appeals from the chancery ■court. The court of civil appeals was not precluded, therefore, from finding the facts of the case from the preponderance of the evidence, without reference to the findings of the circuit judge. But it results from this holding that any issue of fact upon which there is a concurrent finding by the trial judge and the court of civil appeals is settled and determined, and this court will not go behind that finding if there is any evidence to support it. State, ex rel. v. Lee, 124 Tenn., 385, 136 S. W., 997. 3. The question is made by an assignment of error that no injunction, under the facts of this case, lies against petitioner Heiskell, or his property in question, because at the institution of this suit the alleged nuisance charged to said Black did not exist; it having previously been abated by Black’s vacation and removal from said premises. In response to the question made under this assignment of error, the court of civil appeals , said in its opinion, viz.: “The only question that remains is whether the defendant Bl'ack had, in good faith, vacated the premises before the petition was filed, and had turned the premises over to his codefendant Heiskell. “We are of opinion that there was evidence tending to show that the premises were being occupied by — 534 — Black at the time of the filing of the petition. While-it does not expressly appear, the inference can be properly drawn from the evidence that the defendant Heis-kell did not undertake to have Black vacate the premises in question until just before the petition was actually filed, and until after the same had been prepared,, or was in course of preparation, by the district attorney. “While it does not expressly appear from the evidence that the defendant Heiskell had gained knowledge or information that the petition was about to be filed against him, we think it may be inferred from the evidence that he did have either knowledge or information that the petition was about to- be filed, and that -it was then, and not until then, that he made an'effort to get Black out of the premises; and, this being true, wé do not think that he could permit Black to remain in the premises until the very day of the-filing' of the petition, and up to within three or four hours before the petition was in fact filed, before making any effort to have the premises vacated and said unlawful business stopped, and now make the defense* that said nuisance did not exist at the time of the actual filing of the petition, arid escape the operation of the injunction. “However, we think there is material evidence bathe record tending to show that Black had not vacated the premises, even at the time the injunction was served, which was after it had been served on Mr; — 535 — Heiskell, and, in all probability, a day or two after it bad been served on Mr. Heiskell. “We think the same rule may properly be applied to this case as to any other law case tried before the circuit judge without the intervention of a jury; and that is, that if there is any material evidence to-support the findings of the circuit judge upon material questions of fact, his findings will not be disturbed, and the judgment will not be reversed, except for errors of law. ” It is manifest from the foregoing quotation that there is no concurrent finding of the circuit judge and the court of civil appeals in respect of the questions as to whether the alleged nuisance actually existed at the time the petition in this cáse was filed, or had previously been abated by Black’s removal from' the premises. It is seen.from the-excerpt quoted from the opinion of the court of civil appeals above that it was held by that court that there was material evidence in the record tending to show that Black had not vacated the premises in question'at the time the petition was filed, and, without undertaking to determine the weight or preponderance of the evidence, the court held on this point that the finding of the circuit judge would not be disturbed, because there was soihe material evidence to support it. It is necessary, therefore, for this court to determine from the evidence in the record whether the alleged liquor nuisance existed in the said building of petitioner Heiskell, at No. 112 South Central street, — 536 — in the city of Knoxville, at the time the petition in this case was filed in the circuit court; because the “Nuisance Act,” under which this suit is brought, is not designed to punish a defendant for offenses previously committed, but to abate nuisances existing at the time the action is commenced, and to enjoin the further continuance of such existing nuisances. The statute does not authorize the courts to interfere with the use by the owner of his property, and tax him with costs, unless it be necessary to do so in order to abate an existing nuisance. Sharp v. Arnold, 108 Iowa, 203, 78 N. W., 819; Shear v. Brinkman, 72 Iowa, 698, 34 N. W., 483; Merryfield v. Swift, 103 Iowa, 167, 72 N. W., 444; Miller v. State, 3 Ohio St., 475, 488. We do not wish to be understood as holding that, in order to warrant an injunction against the owner of the property, sales must be shown up to the date of the action to enjoin. If it should appear from the proof in a case of this character that there had been a liquor nuisance in the building, and that, recently before the filing of a petition for injunction to abate same, the business was suspended, and was not in operation at the time the petition was actually filed, but it should also appear from the proof that the claim of voluntary abatement of the nuisance was merely colorable, and a mere pretext to escape the consequences of an impending prosecution, the defense would not avail. In the present case we find from the testimony of S. G-. Ileishell and James A. Gleason that Mr. Heis537 kell was' the owner of the building at No. 112 South Central street at the time of the transactions involved in this case; that Mr. Heiskell leased the lower floor of said building to James A. Gleason by written lease, copied into the record, for one year ending April 25, 1914, and Mr. Gleason paid Mr. Heiskell the stipulated rent of $200 for the year; that at the time the lease expired on April 25, 1914, defendant Black was occupying the premises under a rental contract with Gleason, which terminated at the expiration of Gleason’s lease from Heiskell on April 25th; that Gleason communicated with Heiskell on April 25th, and said to him that Black owed him (Gleason) some back rent, and asked Heiskell to permit Black to remain in the building a day or two longer, until he (Gleason) could collect said rent, to which Heiskell agreed; that Black paid said back rent to Gleason on April 26th or 27th, and Gleason, on one of those days, notified Heiskell of that fact, and that the building was at his (Heis-kell’s) disposal; that Heiskell thereupon entered into negotiations with other parties for a lease to them’ of the building; that Black did not remove his goods and fixtures from the building until May 4th, but he remained during that time without any contract with Heiskell, and without paying any rent to Heiskell; that Black moved his stock and fixtures out of said house on the morning of May 4, 1914, and on that day, about 2 o’clock in the afternoon, delivered the key and surrendered possession of the building to — 538 — Heiskell, and that about three or four hours thereafter the bill in this case was filed. • It is argued on behalf of the appellee that there is evidence in the record that Black was still occupying the property on May 5th, the day after the petition was filed in the circuit court; but we do not think that the testimony upon which this contention is predicated supports it. A. L. Wells, a deputy sheriff, testified, viz.: “I do not know who occupied the upstairs of that building; I don’t know who the party is. When T served the papers in this case on Mr. Black, I found him upstairs at the head of the steps. There was no one with him. I was looking for him. ... I had been looking for him some time, and Mr. Black stuck his head out over the edge of the porch and called me up stairs.” The lease by Mr. Heiskell to Gleason did not include any part of the building except the lower floor, and there is no proof that Black had at any time occupied any part of the building except the lower floor. It is shown in the record that the upper floor had been rented to another party or parties for a rooming house, so that the mere fact that Black was in the hallway upstairs, which was reached by a stairway disconnected from the rooms below formerly occupied by Black, would not, in our opinion, tend to weaken the testimony of Heiskell, Gleason, and Black that Black had removed from the building and had delivered the key and complete possession thereof to Heiskell at — 539 — •or before 2 o’clock on the afternoon of May 4th. The fact, that Black delivered the key to Heiskell only abont three hours before the petition was filed might have more weight as a circumstance tending to cast suspicion upon the good faith of Mr. Heiskell but for the fact that Mr. Heiskell’s testimony shows, without contradiction, that there was no agreement or understanding on his part that Black was to remain in the building after Gleason’s lease expired, but that it was his understanding that Black was to move out at once :and that he, Heiskell, with that understanding in mind, ■toas conducting negotiations with other parties looking to a lease to such other parties of that part of' the building then occupied by Black. It results that the decree of the court of civil appeals and the decree of the circuit court against S. G. Heiskell must be reversed, and the petition, in so far as it seeks relief against him, will be dismissed. The ■costs of the appeal,and the costs accrued in the circuit court in the prosecution .of the cause against- S: G. Heiskell will be paid by' the State,- when duly certified to the comptroller for payment in the manner, required by law.