People Ex Rel. Foltz v. Gifford

BURNETT, J.

The action was under the Red-light Abatement Act (Stats. 1913, p. 20) and resulted in. a judgment of abatement as a nuisance of certain buildings used for prostitution in the city of Tracy, in the county of San Joaquin. The appeal is here upon the judgment-roll alone and we can see no merit whatever in the position of appellants.

[1]

It appears that after the evidence was heard the action was dismissed as to the occupant of the building, and it seems to be the claim of appellants that thereby the plaintiff lost the right to prosecute the cause any further; in other words, that the action must be prosecuted to judgment against both the owner and occupant, if prosecuted at all. There are certain cases of

joint tort-feasors

where this principle would probably apply, but such is not the situation herein. In considering the question, it is well to remember that the principal purpose of the action is to abate and prevent a nuisance, it being a proceeding

in rem,

primarily against the property because it is maintained and used in violation of the law. The statute contemplates that the owner and occupant shall be made parties to the action to afford them an opportunity to meet the accusation and protect their property interests, but when it has been shown that the building is used for such immoral purposes, the owner cannot resist the abatement of the nuisance simply because the court has seen fit to dismiss the action as to the occupant. It is manifest that he is not prejudiced in any manner by such dismissal, however erroneous it may be. The case is entirely different from those instances of joint personal liability where there may be the right of contribution. Besides, the record does not show upon what ground the action was dismissed nor upon whose motion. We may assume that it was done at the instance and according to the request of appellants. If so, they would not be heard to question a righteous judgment upon the ground that it was irregularly rendered by reason of an error com

[184]

mitted at their own solicitation. Por he it said that, according to the findings, the court committed error in dismissing the action against Jessie Green.