{
  "id": 8561449,
  "name": "STATE OF NORTH CAROLINA, ex rel JAMES C. BOWMAN, Solicitor, Eighth Solicitorial District, Plaintiff v. HOWARD FIPPS and DOZIER POWELL, Defendants; and STATE OF NORTH CAROLINA, ex rel JAMES C. BOWMAN, Solicitor, Eighth Solicitorial District, Plaintiff v. LUTHER POWELL, Defendant",
  "name_abbreviation": "State ex rel. Bowman v. Fipps",
  "decision_date": "1966-02-04",
  "docket_number": "DOCKET No. 6395; DOCKET No. 6396",
  "first_page": "535",
  "last_page": "537",
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    {
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      "cite": "266 N.C. 535"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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    {
      "cite": "259 N.C. 704",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
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    {
      "cite": "217 N.C. 447",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
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    {
      "cite": "217 N.C. 519",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "217 N.C. 526",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8612155
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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    {
      "cite": "264 N.C. 396",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8573545
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  "last_updated": "2023-07-14T18:16:51.556627+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE OF NORTH CAROLINA, ex rel JAMES C. BOWMAN, Solicitor, Eighth Solicitorial District, Plaintiff v. HOWARD FIPPS and DOZIER POWELL, Defendants, and STATE OF NORTH CAROLINA, ex rel JAMES C. BOWMAN, Solicitor, Eighth Solicitorial District, Plaintiff v. LUTHER POWELL, Defendant."
    ],
    "opinions": [
      {
        "text": "Shabp, J.\nThe difference between the judgments tendered and the judgment which the court signed is twofold: (1) The court\u2019s judgment directed that the premises be returned to the owners; the tendered judgment declared the place of business a nuisance. (2) The court\u2019s judgment made no provision for the inclusion of attorney\u2019s fee in the costs of the proceedings; the tendered judgment directed that the costs, including a fee in the \u201csum of $.\u201d for John A. Dwyer, be paid from the proceeds of the sale of the personal property of the defendants Fipps and Luther Powell.\nCounsel for plaintiff stressfully contends that the operation on the premises of a nuisance as defined by G.S. 19-1 having been established, the court should have ordered \u201cthe effectual closing of the building or place against its use for any purpose ... for a period of one year,\u201d as provided by G.S. 19-5.\nThis contention is without merit, and heretofore has several times been decided against plaintiff. A proceeding to abate a nuisance is not a proceeding in rem against the property itself, but is a proceeding in personam. Bowman v. Malloy, 264 N.C. 396, 141 S.E. 2d 796; Sinclair, Solicitor v. Croom, 217 N.C. 526, 8 S.E. 2d 834. The owners of Luther\u2019s Place were never made parties to the proceeding; Dozier Powell, the owner of Fipps\u2019 Place, was originally made a party, but during the trial, plaintiff took a voluntary non-suit as to him.\nBefore the court can padlock a lessor-owner\u2019s premises and deprive him of the possession of his property on account of a nuisance maintained thereon by his tenant, it must be established by verdict in a proceeding to which the owner is a party that he knew, or could by due diligence have known, that the nuisance was being maintained. Bowman v. Malloy, supra; Sinclair, Solicitor v. Croom, supra; Barker v. Palmer, 217 N.C. 519, 8 S.E. 2d 610; Habit v. Stephenson, 217 N.C. 447, 8 S.E. 2d 245.\nAs provided in G.S. 19-6, the court directed that the proceeds from the sale of the personal property used in connection with the established nuisances be applied to the payments of the costs of these actions. He did not include in these costs an attorney\u2019s fee, although one was requested in the tendered judgment. The allowance of a fee was a matter in the discretion of the trial judge. G.S. 19-8. See Hoskins v. Hoskins, 259 N.C. 704, 131 S.E. 2d 326. No abuse appears.\nThe judgment of the court below is\nAffirmed.",
        "type": "majority",
        "author": "Shabp, J."
      }
    ],
    "attorneys": [
      "John A. Dwyer for plaintiff appellant.",
      "D. Frank McGougan for Howard Fipps and Dozier Powell defendant appellees.",
      "B. C. Soles for Luther Powell defendant appellee."
    ],
    "corrections": "",
    "head_matter": "DOCKET No. 6395,\nSTATE OF NORTH CAROLINA, ex rel JAMES C. BOWMAN, Solicitor, Eighth Solicitorial District, Plaintiff v. HOWARD FIPPS and DOZIER POWELL, Defendants, and STATE OF NORTH CAROLINA, ex rel JAMES C. BOWMAN, Solicitor, Eighth Solicitorial District, Plaintiff v. LUTHER POWELL, Defendant.\nDOCKET No. 6396,\n(Filed 4 February, 1966.)\n1. Nuisance \u00a7 10\u2014\nWhere verdict of operating a public nuisance is returned solely against the lessees of the premises, order for the sale of personalty may be entered, but the court properly refrains from ordering the realty padlocked, since the proceeding is in personam and the lessors may not be deprived of possession unless they are parties and it is established that they knew or by due diligence should have known that the nuisance was being maintained. G.S. 19-5.\n2. Nuisance \u00a7 12\u2014\nWhether an attorney\u2019s fee should be allowed from the proceeds of sale of personalty ordered by the court in a proceeding to abate a nuisance is addressed to the discretion of the court, and its refusal to allow attorney\u2019s fees will not be disturbed in the absence of a showing of abuse. G.S. 19-8.\nAppeal by plaintiff from Clark, J., May 1965 Civil Session of Columbus.\nThese two actions were instituted on March 19, 1965, by the Solicitor of the Eighth District under G.S. 19-1 et seq. for the abatement of a nuisance. Case No. 6395 was brought against Howard Fipps, the lessee-operator of the premises known as \u201cState Line,\u201d or \u201cFipps\u2019 Place,\u201d and against Dozier Powell, the owner of the premises. Fipps\u2019 Place is located on the west side of Highway No. 410 about one foot north of the South Carolina line. Case No. 6396 was instituted against Luther Powell, the lessee-operator of the premises known as \u201cState Line\u201d or \u201cLuther\u2019s Place,\u201d which is located on the east side of Highway No. 410 opposite Fipps\u2019 Place. The complaints are signed by James C. Bowman, Solicitor, and John A. Dwyer, \u201cattorney for plaintiff.\u201d\nIn each case, the State alleged and offered evidence tending to show that the building and improvements on the particular premises were \u201cused for and in connection with the illegal sale of whiskey . . . and beer.\u201d In Case No. 6395, plaintiff averred that the owner, Dozier Powell, operated the place of business known as State Line \u201cin conjunction with Howard Fipps.\u201d Each defendant filed an answer in which he denied that his premises had been used for any illegal purposes whatever and, at the trial, each offered evidence tending to show that his place of business was a well-conducted, small grocery store.\nAt the close of plaintiff\u2019s evidence, counsel took a voluntary non-suit as to defendant Dozier Powell, and the case proceeded as to the two tenants. The following issue was submitted to the jury and answered as indicated:\n\u201cHas the defendant Howard Fipps conducted and operated the place of business known as State Line, or Fipps\u2019 Place, in such a way as to constitute a nuisance against public morals, pursuant to G.S. 19-1?\n\u201cANSWER: Yes.\u201d\nAn identical issue was submitted with reference to defendant Luther Powell. It was also answered Yes.\nPlaintiff tendered two judgments, which the judge declined to sign. Instead, he signed one judgment which recited both issues and ordered that the personal property owned by defendants Fipps and Powell, and used by each in connection with his business, be sold as provided by G.S. 19-5; that Fipps and Powell be restrained from the operation of their respective places of business for a period of 12 months; and that the real property be \u201creturned to the respective owners, Dozier Powell and the estate of C. M. Powell.\u201d\nFrom the judgment entered, plaintiff appeals, assigning as error the court\u2019s refusal to sign the tendered judgments.\nJohn A. Dwyer for plaintiff appellant.\nD. Frank McGougan for Howard Fipps and Dozier Powell defendant appellees.\nB. C. Soles for Luther Powell defendant appellee."
  },
  "file_name": "0535-01",
  "first_page_order": 571,
  "last_page_order": 573
}