West v. Selvey

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin county, Ohio.

The record discloses that the defendants reside at 5273 North High street in Franklin county, between the municipalities of Columbus and Worthington. The territory in which defendants reside is predominantly residential. On or about October 26, 1944, the plaintiffs commenced an action to enjoin the defendants from maintaining a nuisance on the latter's premises, the basis therefor being that the defendants operated a dog kennel where it was their practice to breed, raise, sell and board dogs, as a business. Some of the plaintiffs purchased their homes or moved into the community after the defendants had commenced the operation of the kennel, and others of the plaintiffs resided there before the kennel was established.

The cause came on for hearing, and on April 2, 1945, the defendants were enjoined from maintaining such nuisance, the pertinent part of the finding of the court being as follows: "* * * that said kennel as so operated by said defendants and each of them constitutes a public nuisance and the same should accordingly be abated."

In July 1945, the plaintiffs filed an application for an order requiring the defendants to appear and show cause why they should not be held in contempt of court for failing to abate the nuisance. Such order was issued and the contempt proceedings came on to be heard. Testimony was taken and the court found the defendants in contempt, and on July 17, 1945, issued the following order:

"It is, therefore, ordered, adjudged and decreed that a fine of $25 be and the same is hereby imposed upon each of said defendants and that each of said defendants be and they hereby are ordered and directed to cease the operation of a commercial dog kennel upon the premises in said petition described, and/or upon the premises owned and used by them contiguous thereto, on or before the 11th day of August, 1945. Provided, however, that if said defendants and each of them cease the operation of said commercial dog kennel on said premises on or before said date that said fines shall thereupon be suspended."

It is from this order and judgment of the court that this appeal is taken.

The assignments of error are:

(1) The court erred in finding the defendants guilty of contempt of court. (2) The judgment of the court is not supported by sufficient evidence. (3) The judgment of the court is contrary to law.

To maintain the first assignment of error the defendants contend that the injunction ordered in the entry filed April 2, 1945, was never binding upon the defendants because no bond was given by the plaintiffs as required by statute. The statutes referred to are as follows:

Section 11882, General Code. "Unless otherwise provided by special statute, no injunction shall operate until the party obtaining it gives a bond * * * in an amount to be fixed by the court or judge allowing it, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted."

Section 11885, General Code. "An injunction shall bind a party from the time he has notice thereof, and the bond required by the applicant therefor is executed."

We interpret those sections as requiring a bond before a temporary injunction becomes effective, but that they have no application to a permanent injunction. So far as we can find, no court has ever held that where the sole relief sought is a permanent injunction, a bond must be given before the judgment granting such relief becomes effective, unless the court order requires such a bond. It is true that Section 11882, General Code, uses the word "injunction" without indicating whether it refers to a temporary or a permanent one. However, upon consideration of the entire chapter on injunctions, it would seem to be clear that Section 11882 refers to temporary injunctions only. Furthermore, it seems from the context of Section 11882 that the word "injunction" as used therein refers to a temporary injunction only. This is indicated by the phrase, "if it be finally decided that the injunction ought not to have been granted." That language seems to indicate that the injunction referred to in that section is one granted in the course of the litigation, the ultimate disposition of which would be determined by the final judgment in the case. The judgment of April 2, 1945, was a final order and not a temporary one, and no bond was ordered by the court.

Reference has been made by the defendants to 21 Ohio Jurisprudence, 1299, Section 221, which uses the phrase, "injunction or a restraining order," thereby indicating that the word, "injunction," and the phrase, "restraining order," are used interchangeably and accordingly refer to the same thing. In legal parlance, a temporary injunction may be called such or it may be termed "a restraining order."

The defendants have made reference to numerous Ohio cases where a bond was required before an injunction became effective, but an examination of those cases discloses that only a temporary restraining order was involved.

As to the second assignment of error, that the judgment of the court is not supported by sufficient evidence, the defendants contend that a contempt proceeding is quasi-criminal and accordingly such proceeding is required to conform with the procedure in criminal cases, and that the rule in criminal cases as to burden of proof must be applied. It is true that some courts have described such proceedings as quasi-criminal. However, the better view is that such proceedings can be divided into two classes depending upon their source. If the proceedings arise out of criminal actions, then they are criminal in their nature. If, however, they arise out of civil actions, they are civil.

Paragraph two of the syllabus in Hayes v. Hayes, 11 Ohio App. 10, is as follows:

"Proceedings for contempt are of two classes. Those prosecuted to preserve the power and vindicate the authority of the court are criminal and punitive in their nature. Those instituted to preserve and enforce the rights of private persons are civil, remedial and coercive * * *."

Where the proceeding has been regarded as quasi-criminal, we find the degree of proof required is that the evidence be clear and convincing. Loney v. Hall, 8 Ohio App. 154.

The trial court in arriving at its decision stated:

"The evidence before us is clear and convincing in establishing that the nuisance which we found to have existed at the time the order was made has not been abated."

We have read the entire record in this case and are of the opinion that the trial court was correct in arriving at its conclusions. All the plaintiffs' witnesses and practically all the defendants' witnesses testified they heard the dogs barking and howling at various times of the day or night season. This noise would certainly constitute a nuisance and cause a disturbance to the residents throughout the community.

We find no merit in this assignment of error.

The last assignment of error is that the judgment of the court is contrary to law. The error in this assignment is that the court ordered and directed the defendants to cease operating a commercial dog kennel upon the premises owned by them or upon premises used by them contiguous thereto. The defendants contend that such order was grossly unfair to them and was beyond the power of the court under circumstances shown by the record, even if the injunction had gone into operation. It is our view that if the trial court had inherent power to adjudge the defendants guilty of contempt, then it had inherent power to impose a penalty reasonably commensurate with the gravity of the offense. This was so held in State, ex rel. Turner, Atty. Genl., v. Albin,118 Ohio St. 527, 161 N.E. 792, paragraphs one and two of the syllabus of which read as follows:

"1. A court created by the Constitution has inherent power to define and punish contempts, such power being necessary to the exercise of judicial functions. Hale v. State, 55 Ohio St. 210 * * * approved and followed."

"2. Upon the punishment of persons adjudged guilty of contempt, the courts have inherent power to impose a penalty reasonably commensurate with the gravity of the offense."

Since the trial court found, and we think properly so, that the defendants not only did not but could not conduct this kennel in compliance with the original order, we feel that it was justified in ordering them to cease its operation altogether.

In Union Reduction Co. v. Story, 8 Ohio App. 381, the court said:

"If a person or corporation cannot carry on his or its business without making it so offensive and annoying to others who have property in the neighborhood as to deprive them of the enjoyment and healthful use of their own property, courts of equity should enjoin the continuance of the business entirely."

The trial court has seemed fair and considerate in this matter. When the injunction was granted, the defendants were not ordered to cease operation of the kennel, the court said, because it wanted to give them an opportunity to comply by abating the nuisance. It was only after the hearing in the contempt proceedings that the court reached the conclusion that the only means by which this nuisance could be abated was by ordering the defendants to cease operation altogether.

We find no error in the record and for the reasons stated the judgment is affirmed.

Judgment affirmed.

HORNBECK, P.J., and MONTGOMERY, J., concur.

MONTGOMERY, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.