Gibbs v. Wyatt , 201 Ga. 344 ( 1946 )

1. "The keeping or maintaining of any place or resort where intoxicating liquor is sold or kept for sale in a dry county, in violation of the provisions of the Code, §§ 58-101 to 58-109, inclusive, as amended by the act of 1938 (Ga. L. Ex. Sess. 1937-38, pp. 103, 104, 123; Code Supp., § 58-124), is a public, common nuisance, which may be abated by writ of injunction issued out of the superior court upon a bill filed by the attorney-general or the solicitor-general of the circuit, or by any citizen or citizens of such county." Ogletree v. Atkinson, 195 Ga. 32 (2) (22 S.E.2d 783).

(a)"It is not the act of possessing liquor or selling liquor that the above statutes declare to be common nuisances, but it is the structure maintained and used for the purpose of keeping or selling therein intoxicating liquors that is declared to be a common nuisance." Lokey v. Davis, 194 Ga. 175 (21 S.E.2d 71).

2. The evidence was sufficient to authorize a finding that the establishment known as "Gibbs Place" was maintained and used for the purpose of selling therein intoxicating liquors.

(a) The evidence as to the circumstances of the alleged sale by the defendant of the business known as "Gibbs Place" was sufficient to authorize a finding that the business was not in fact sold, but that the defendant owned and operated it through his agent.

3. In an action to abate a nuisance maintained upon certain property, title to which was in the defendant's wife, the defendant will not be heard to complain of the possible effect of the order of the court upon the property rights of the wife, where the wife did not intervene to interpose any defense that she may have had. See Ogletree v. Atkinson, supra.

4. The order adjudging the defendant in contempt for having violated a previous court order prohibiting him from engaging in any business upon the premises here involved, and directing that the building in which the business was conducted be padlocked until further order of the court, was not error for any reason assigned.

Judgment affirmed. All the Justicesconcur.

No. 15593. OCTOBER 8, 1946. STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE. The Solicitor-General of Coweta Judicial Circuit filed a suit in Carroll Superior Court against Lewis Gibbs, alleging that the defendant was operating by and through his agent, Jesse Kilgore, an establishment known as "Gibbs Place" in such a manner as to constitute a public nuisance. The petition set forth that on November 7, 1939, an order had been entered in the Superior Court of Carroll County, which directed the sheriff to padlock the same building as houses the present business known as "Gibbs Place," and which order enjoined the defendant Gibbs from carrying on any business in said building or premises. The petition alleged further: That Carroll County is a county wherein the sale of whisky and intoxicating liquors, intoxicating beverages, and beer is prohibited by law; that intoxicating liquors, beverages, and whisky were sold, bartered, and kept for sale, and drunk on the premises; and that the place is a "blind tiger," and is used for the purpose of selling whisky, intoxicating beverages, beer, and wines, and large quantities of the same are stored there for the purpose of sale. The prayers were: That the defendant be temporarily and permanently enjoined from operating any business whatever upon the premises; that the building be closed and padlocked; and that Gibbs be adjudged in contempt of court. The defendant filed an answer in which he disclaimed ownership of the business. And all connection with its operation.

On the hearing, H. R. Lambert, of the Alcoholic Tax Unit of the State of Georgia, testified in substance: That he had on two occasions found whisky on property across the highway from the establishment in question, and that he had seen Kilgore (the alleged agent of the defendant) going across the highway and getting whisky and delivering it; that he had found one quart of whisky in the defendant's home, of the same brand as that found across the highway, and that he had found around forty cases of beer and about ten or fifteen cases of wine stored in a building situated between the business establishment and the defendant's home, and between thirty and forty cases of beer and five cases of wine in the basement of the defendant's home; that he had seen Walt Pollard open whisky in the establishment and get intoxicated there; and that the defendant had sold him soft drinks in the establishment.

The defendant introduced a recorded deed, by which he had conveyed to his wife title to the land on which the business and the defendant's home was situated. From the testimony of the defendant's and his own witnesses it was made to appear: That, after the order of court first padlocking the building, Walt Pollard first opened and operated a business there; that he discussed the amount of rent he would pay with Lewis Gibbs (the defendant); that after operating the business for about five months Pollard sold it to defendant, who immediately sold it to J. C. Kilgore for around $1000 cash, and no record was made of the transaction; that Kilgore operated the place for seven or eight months; that the merchandise was purchased in the name of Gibbs, but that the license was in Kilgore's name; that Kilgore was caught with whisky, beer, and wine, and then wanted to sell the place again; that the defendant bought it from Kilgore, and sold it back again to Pollard for the same price which the defendant had paid for it, as a cash transaction with no receipts or other evidence of the sale; that Kilgore has asked the defendant to let him store his beer and wine in the cellar, and he did not know that it was a violation of the law to possess wine and beer.

The court entered an order finding the defendant in contempt of court, and sentenced him to confinement in the county jail for twenty days, and fined him $200, upon the payment of which the jail sentence would be suspended, and further ordered that the place be and remain padlocked until further order of the court. That above order is assigned as error in a direct bill of exceptions to this court, on the following grounds: That it is contrary to law and to the evidence; that, because there was no charge against the wife, it amounted to taking property without due process of law; that there was no evidence that the defendant operated the place; that there was no evidence that the defendant had violated the judgment of the court; and that there was no evidence that the defendant has violated the whisky law since the closing of the place or prior thereto.