Sullivan v. Royer

Foote, C. —This is an action in equity instituted for the purpose of enjoining and abating certain nuisances, and for the recovery of damages resulting therefrom. The cause was tried before a jury, who heard all the evidence given therein, a verdict was by them rendered for one hundred dollars damages against the defendant, “ and that he be ordered by the court to abate the nuisances complained of by the plaintiff.” Thereupon the court made and filed written findings of fact upon all [249]the material issues raised by the pleadings, and rendered its judgment, enjoining the defendant from continuing the nuisances complained of, ordering that the same be abated, and that the plaintiff recover the sum of one hundred dollars damages, and costs. A new trial was moved for by the defendant, and denied, and from the judgment and order made therein this appeal is prosecuted.

Counsel for the defendant contends most earnestly upon several grounds that the judgment and order should be reversed, but none of them appear to us to be tenable.

There was no error in the refusal of the court to allow the defendant's counsel to read law books, or to make an argument on the law of the case, or to state what he claimed to be law, to the jury. (People v. Anderson, 44 Cal. 70; Proffatt on Jury Trials, sec. 253.)

As we have seen, this was an action in equity. (People v. Moore, 29 Cal. 427; Courtwright v. B. R. & A. W. & M. Co., 30 Cal. 576, 577.) An abatement of a nuisance is accomplished by a court of equity by means of an injunction proper and suitable to the facts of each case. (Wood on Nuisances, secs. 777-794.)

The complaint alleged and the court found that a nuisance existed and -was continuous; the answer denied all the material allegations of the complaint. While it is true that the prayer of the pleading above referred to did not expressly ask for the issuance of an injunction, yet it did ask “that said nuisance be abated.” The relief granted was consistent with the case made by the complaint, and ■embraced within the issues made by the pleadings, and was therefore entirely proper. (Code Civ. Proc., sec. 580.)

There is a substantial conflict in .the evidence *as to whether the plaintiff was at the time' of the institution .of the action .employed by the defendant to remove the •“pile of hair and flesh” that constituted a part of the nuisance complained o£