Summary
In Hester v. Bishop, 193 Miss. 449, 10 So.2d 350 (1942), Bishop sued Hester to enjoin as a public and private nuisance a stock and auction pen operated by Hester.
Summary of this case from Wisdom, et Ux. v. StegallOpinion
No. 35105.
November 9, 1942.
1. COURTS.
"Hearing in vacation," as used in court order declaring that cause, by consent of parties, was set for hearing in vacation at a time and place to be set by court, meant a trial in vacation when and where both sides should be heard, as the expressions "hearing" and "trial" are substantially synonymous; the former being used in chancery as meaning a trial therein.
2. JUDGMENT.
In suit to enjoin a nuisance where cause was by consent passed for a hearing in vacation and no hearing was held, refusal to grant defendant's motion to vacate inadvertent and invalid decree was error.
3. NUISANCE.
Right of defendant to be heard cannot be shut off by an inspection or view of premises alleged to constitute the nuisance by trier of facts, however convincing such inspection may have been to him, since both parties have right to make a record of testimony of their own witnesses for purposes of appeal even if trier of fact by reason of his view of premises would not be moved by such witnesses.
4. NUISANCE.
In suit to enjoin a nuisance, trier of facts may not receive any ex parte oral communications outside of court, whether on an inspection of premises alleged to constitute the nuisance or elsewhere, and use such communications as factors in arriving at a decision.
5. TRIAL.
Communications as to facts on merits of any litigated case may be presented only by sworn witnesses or by agreement of counsel.
APPEAL from the chancery court of Copiah county, HON. V.J. STRICKER, Chancellor.
J.H. Garth and Henley, Jones Woodliff, all of Hazlehurst, for appellant.
A court of equity will not make a decree for a perpetual injunction which is to operate directly upon the parties in interest, without giving them an opportunity to be heard. Unless the right is waived, the parties are entitled to a trial in open court, with the right to have the evidence heard, either by deposition or orally, and the opportunity to examine and cross-examine witnesses. It is not proper to issue a permanent injunction upon the hearing of an order to show cause why a preliminary injunction should not issue or upon motion to dissolve heard before answer. A permanent injunction should issue, or a temporary injunction should be made permanent, only upon final hearing after the cause is at issue, and after notice to defendant.
Marshall v. Beverley, 5 Wheat. 313, 5 L.Ed. 97; Shaw v. Goodman, 135 Ga. 230, 69 S.E. 173; Chicago, etc., R. Co. v. St. Louis, etc., R. Co., 79 Ill. A. 384; Calvert v. State, 34 Nebr. 616, 52 N.W. 687; Parsons v. Roby, 77 N.H. 600, 92 A. 736; 32 C.J. 262, 362.
A judgment cannot be sustained where a finding is based on inspection alone, unsupported by other evidence.
64 C.J. 1201.
Entry of judgment upon issues of fact raised by the pleadings in a trial before the court without hearing evidence is erroneous.
64 C.J. 1203.
See also Southern Package Corp. et al. v. Beall, 181 Miss. 740, 180 So. 789.
M.S. McNeil, of Hazlehurst, for appellees.
The appellant assigns as error the action of the court in rendering the decree on September 8, 1941, at the regular term of the court, because he insists that the record shows that the court was considering at the time only the question of a temporary restraining order. In this he is in error. The procedure before the court was on bill, answer and oral testimony. The decree itself shows that the cause had been set down for hearing on bill, answer and oral testimony. We quote that part of the decree which reflects light upon this subject: "This cause having been set down for hearing in vacation on bill, answer and oral testimony taken in open court, etc."
But even if he is correct in this, and the facts were fully developed, as the record will disclose, then the court had the right to render a decree on the merits, and especially is this true when we consider the bill and answer, taken in connection with the testimony of one of the defendants (Fairchilds), who had active charge of the stock pen. Fairchilds had exclusive charge of the cattle pen. He was the alter ego of the entire operations. He admitted every material allegation of the complainants' bill.
The facts being undisputed by the defendant, who admitted he had active control of the stock pen, it was not necessary for the court to go further, and this situation creates an exception to the rule announced by the authorities cited by counsel for appellant.
32 C.J. 365, note g.
On motion for a rehearing the learned chancellor, in order to fully satisfy and justify his former ruling, visited the scene where the cattle pen was operated, and upon his return to the courtroom reaffirmed his former ruling by holding that the stock pen, located as it was in close proximity to the school and in the center of the city, was a nuisance and that the conditions were self evident, modifying the decree to the extent of allowing the defendants thirty days after the adjournment of court in which to remove the same.
The chancellor has the discretionary power to reopen a case and remand it to the docket whenever he deems it necessary in order to do equal justice to the parties. He certainly has the right to close the testimony in a case and decide the issues when he has been fully satisfied that he is in a position to mete out equal justice to the parties concerned.
Griffith's Miss. Chancery Practice, Secs. 595, 596.
On October 7, 1940, a bill was filed in the chancery court by appellees seeking an injunction against a stock and auction pen operated by appellant and her agents near the center of the City of Hazlehurst. The allegations of the bill were to the effect that the pen was a public and a private nuisance. Due notice was given, and on October 10, 1940, a hearing was begun upon an application for a temporary injunction. After the complainants' testimony had been introduced, including the testimony of two of the defendants, who had been called by complainants as adverse witnesses, but before the defendants had had any opportunity to call on their part any of their witnesses, the further hearing was passed for sixty days in order that action might be taken on a petition then before the municipal council, wherein an order for the abatement of the alleged nuisance was being sought at the hands of the municipal board.
Answer was filed by the defendants on December 10, 1940, but nothing further was done in the chancery court until March 25, 1941, when a supplemental answer was filed making as an exhibit thereto the order of the Mayor and Board of Aldermen of the city, which dismissed the petition to abate. Two days later and during the March, 1941, term of the court, the following order was entered: "This cause, by consent of all parties, is set for hearing in vacation, at a time and place to be set by the court."
No time for a vacation hearing was then or thereafter set by the court, and in fact no further hearing was had in vacation, and the next thing that happened was, in form, a final decree rendered by the court in vacation on September 8, 1941, by which the court sustained the bill, not as for a preliminary injunction, but upon the merits. On September 20, 1941, two days before the convening of the regular September, 1941, term of the court the defendants filed a motion which in effect called attention to the fact that the defendants had had no opportunity to present their witnesses on the merits and to make their defense in full, averring that they had a complete defense to the bill, and requested that the decree of September 8, 1941, be vacated, so as to give the defendants their full day in court.
This motion was heard on September 30, 1941, during a day of the regular term. Upon the opening of the hearing on the motion, the record recites that: "At this point the Court repaired to the scene and location of the cattle pen involved in this cause, and afterwards returned to the courthouse when and where the following proceedings were had to-wit —." The only proceeding thence had was the testimony of one witness who apparently was called by the court, and when this witness had concluded, the defendants, by their counsel, again stated: "The defendants now ask the opportunity of introducing witnesses on the trial of the case on its merits," to which complainants objected, and thereupon the chancellor called the court reporter and dictated what he had seen and heard on his view of the premises, including what had been told him by the school children, and he concluded his dictation with the announcement that the motion would be overruled and the injunction granted, and thereafter, on October 2, 1941, a final decree was entered on the merits, but with some modification as compared with the decree of September 8, 1941.
When at the March, 1941, term the case was passed for a hearing in vacation, this meant a trial in vacation, when and where both sides shall be heard, the two expressions being substantially synonymous, the former being the word used in chancery as meaning a trial therein. But no trial was had thereafter in vacation, and in consequence the ostensible decree of September 8, 1941, was inadvertent and invalid, because the defendants had not been heard on the merits. This being true, it is equally manifest that the motion made, at the term following a few days thereafter, to vacate this inadvertent and invalid decree ought to have been sustained, and the defendants given opportunity to introduce the evidence for their side and all the evidence which they had, relevant to the issues, and this upon principles which are not only elementary but are fundamental.
And this right to be heard cannot be cut off by an inspection or view of the premises by the trier of the facts, however convincing such an inspection may have been to him. The parties, defendants as well as complainants, have the right to make a record of what their own witnesses introduced by them and at their selection and call will have to say even if the trier, on account of his view of the premises, would not be moved by such witnesses — for appeals are given by law in cases such as this.
We do not go further into the matter of the view or inspection as made in this case than to say that the trier of the facts may not receive any ex-parte oral communications outside of court, whether on an inspection or elsewhere, and use these as factors in arriving at a decision. Communications as to facts on the merits of any litigated case may be presented only by sworn witnesses, or by the agreement of counsel.
Reversed and remanded.