People v. Burkett

FINCH, P. J.

The complaint alleges that the defendant Park Hotel Company is the owner of a certain described building; that a designated part of the building “is and for many months prior to the filing of this complaint has been used for the purpose of unlawfully selling, serving, beeping, storing and giving away intoxicating liquor”; that the defendants “during all the time herein mentioned have been and now are conducting and maintaining the same as a place where intoxicating liquors have been and now are, kept, sold, stored or given away” contrary to the state and national prohibition laws. The prayer is for a judgment, among other things, abating the alleged nuisance, and enjoining the further maintenance thereof by defendants. The complaint does not allege that the district attorney had served notice of the existence of the alleged nuisance upon the owner of the property prior to the filing of the complaint. The defendants Burkett and Park Hotel Company filed separate demurrers to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrers and dismissed the action. This appeal is from the judgment of dismissal. A temporary injunction was not applied for.

Counsel for respondent Burkett, evidently through oversight as to the contents of the complaint, contends that the allegations thereof show the maintenance of a nuisance, not at the time the complaint was filed, but only at times prior thereto. Counsel’s error is apparent from the parts of the complaint herein set out.

The only other ground upon which respondents attempt to justify the ruling of the court is that the complaint is insufficient in the failure to allege that written notice was served upon the owner of the property by the district attorney prior to the filing of the complaint. They

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rely upon the provisions of section 3 of chapter 132, statutes of 1915. That section reads as follows:

“The complaint in such action must be verified unless filed by the district attorney. Whenever the existence of such nuisance is shown in such action to the satisfaction of the court or judge thereof, either by verified complaint or affidavit,

and the court or judge is satisfied that the owner of the property has received written notice of the existence of such nuisance, signed by the complainant or the said district attorney at least two weeks prior to the filing of the complaint,