Babbitt v. Corrigan
| Decision Date | 19 November 1912 |
| Parties | BABBITT v. CORRIGAN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Scott County; William Theophilus, Judge.
Suit in equity to enjoin Hugh Corrigan from maintaining a liquor nuisance. Corrigan interposed a demurrer in the court below, which was sustained. From such ruling the plaintiff has appealed. Appeal dismissed.George Cosson, Atty. Gen., and Betty & Betty, of Davenport, for appellant.
Isaac Petersberger, Thuenen & Shorey, and Henry Vollmer, all of Davenport, for appellee.
C. M. Waterman, amicus curiæ.
It is charged in the petition that Corrigan is unlawfully operating a saloon in the city of Davenport and that he there sells and keeps for sale intoxicating liquors in violation of law. The prayer of the petition asks for an injunction, temporary and permanent, and for the abatement of the nuisance.
[1] It is now made to appear that after the appeal was perfected, and on September 12, 1912, Corrigan died. For this reason the attorneys of record for appellee ask that the action be abated as against Corrigan and that the appeal be dismissed. A civil action does not ordinarily abate by reason of the death of the defendant. Code, § 4150. On the other hand, a criminal action does so abate, from the very nature of the case. Punishment cannot be imposed upon a dead man, nor can penalties be imposed as against his estate. In the case before us, the only relief prayed is injunctional and penal. Death has enjoined Corrigan, and neither this court nor the lower court can add anything to such decree. From the very nature of the case, the court has no further power over the defendant, either to impose punishment or to adjudge his guilt or innocence.
[2] It is urged by appellant that the case should be saved as against the real estate and the owner thereof. But such question is not before us. The title of the case in this court names Corrigan as sole defendant. It does appear, however, from the body of the petition, that Elizabeth Koch is the owner of the premises, and relief is prayed against her as such owner, on the ground that she had knowledge of the violation of law by Corrigan. It is not made to appear whether she was ever served with notice, or whether she appeared in the action, or whether she was named as a defendant in the lower court. In prosecuting his appeal to this court, the appellant served notice on Corrigan alone. Manifestly, therefore, there is no other party defendant before us. If the plaintiff is entitled to proceed as against Elizabeth Koch, notwithstanding the death of Corrigan, such...
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