
    George Smith v. The State of Ohio.
    The sentence and judgment, required hy the statute, upon conviction for maintaining a nuisance, under the act of April 15, 1857, can not be dispensed with upon a showing that the nuisance does not exist at the time such judgment is about to be rendered. In such case, however, an order to remove or abate the nuisance will not be issued to tho sheriff ns a matter of course; and, on the hearing of a motion for such order, either party will be heard upon testimony, and if it then appear that such nuisance has ceased to exist, the order should not issue.
    Motion for writ of error to the Court of Common Pleas of Cuyahoga county.
    The plaintiff in error, who was defendant below, was convicted, in the court of common pleas, for maintaining a nuisance, under the act of April 15, 1857 (S. & C. 880). After verdict, the prosecuting attorney^moved the court for judgment; and pending the motion, and before sentence, the defendant offered to prove to the court that said nuisance had been removed, and did not exist at the time said motion was made — which proof the court refused to hear; and thereupon the defendant excepted and took his bill of exceptions. The court then passed sentence, as follows, to wit: that said defendant pay a fine of $100 and costs; and that the nuisance charged in the indictment bo and the same is ordered to be abated and removed, by the issuing of an order, out of this court, to the sheriff of Cuyahoga county for that'purpose; the same to be.done at the expense of the defendant, unless such nuisance shall be abated or removed before said order shall be issued, to tho sheriff'.
    
      The refusal of the court to hear the evidence offered, by the defendant, on the motion for judgment, is the only matter assigned for error.
    
      Heisley $ Heisley and Grannis $■ Henderson, for the motion :
    The court ought to have heard testimony before making the order that the sheriff' should abate the nuisance.
    Suppose the defendants had corrected their mode of carrying on the business so that it really is no longer a nuisance, and the court, as a matter of course, makes an order, as in this case, is it to be left to the sheriff's judgment, whether he will stop and shut up the business? We refer to Miller & Gibson v. The State, 3 Ohio St. 476.
    If the words, “ unless such nuisance shall be abated or removed,” in section 3 of the act of. April 15, 1857 (S. & C. 880), apply only to the costs on the order, then those costs depend upon the judgment of the sheriff whether the nuisance still exists. We submit the section should be construed as reading, “ The court shall, unless,” etc., “ make it a part of the judgment,” etc.
    
      Homer B. JDe Wolf, Prosecuting Attorney, contra.
    Section 1 of the act (S. & C. 880) makes it the duty of the court, upon conviction, to order the nuisance to be abated.
    Under section 3, the court was bound, upon conviction, to make it a part of the sentence that the nuisance be abated, by an order to be issued to the sheriff' for that purpose. The judgment does not, per se, operate as an abatement ; the issuance of the order is necessary to carry the judgment into execution. That part of section 3, following the words “ unless,” refers simply to the costs.
    If no nuisance exists the order is null, and the state must pay the costs made by its issuance.
    The Common Pleas has simply obeyed the statute.
    The plaintiff in error can have nothing to complain of until after the judgment — not until an order is issued. It is believed that the act of 1857 was passed to avoid the difficulties set forth in Miller & Gibson v. The State, 8 Ohio St. 488, and for the very purpose of enabling the court to abate the nuisance.
   By the Court.

We think there was no error in refusing to hear the evidence for the purpose for which it was offered, to wit, to prevent a judgment for the removal of the nuisance, by an order to be issued to the sheriff, and at tlie expense of the defendant, unless the nuisance should be abated before the order should issue to the sheriff*.

It was the duty* of the court to render the judgment complained of upon the conviction of the defendant. If, after such judgment was rendered, a motion had been made for the issuing of an order to the sheriff, testimony of the nature offered should have been received by the court.

After conviction and sentence, under this statute, an order to the sheriff'should not he issued as a matter of course, but only upon a showing that the nuisance continues to ' exist.

Motion overruled.  