Bartel v. Hobson

• Decision Date: 05 April 1899
• Citation: 78 N.W. 689,107 Iowa 644
• Parties: FRANK BARTEL, Plaintiff, v. A. N. HOBSON, Judge, Defendant
• Court: Iowa Supreme Court

78 N.W. 689

107 Iowa 644

FRANK BARTEL, Plaintiff, v. A. N. HOBSON, Judge, Defendant

Supreme Court of Iowa, Des Moines

April 5, 1899

PROCEEDING by certiorari for the review of an adjudication by the district court of Winneshiek county by which the plaintiff was found guilty of contempt, and required to pay a fine and costs.--Judgment affirmed.

AFFIRMED.

Dan Shea and John B. Kaye for plaintiff.

E. R Acres and E. W. Cutting for defendant.

OPINION

ROBINSON, C. J.

The record submitted to us shows the following facts: In November, 1894, in an action in equity in which J. L. Cameron was plaintiff, and C. & J. Michel, C. Michel, J. Michel Frank Barth, and another were made defendants, the defendants named were found to have created a nuisance by maintaining a place for the illegal sale of intoxicating liquors, and by selling therein such liquors illegally; and it was further found "that a perpetual injunction ought to issue against the defendants" above named, "forever restraining them" from selling illegally, or keeping with intent to sell illegally, intoxicating liquors in the place which they had maintained, or elsewhere within the Thirteenth judicial district, and from permitting that place to be used as a place in which to sell or to keep for sale intoxicating liquors in violation of law. The decree also contained the following: "It is therefore ordered adjudged, and decreed that defendants are enjoined, and that a perpetual injunction issue against the defendants (naming them), forever restraining them, and each of them, from the sale of intoxicating liquors on the premises described; * * * and it is further ordered that a perpetual injunction issue against the defendants, forever restraining them, and each of them, from permitting the said premises * * * above described, or the buildings thereon, or any part of them, to be used as a place for the illegal sale of intoxicating liquors intended to be sold illegally." In September, 1897, Cameron filed in the office of the clerk of the district court of Winneshiek county an affidavit, to which was attached a copy of the decree to which we have referred. The affidavit alleged that the Frank Barth named in the decree, and Frank Bartel, the plaintiff in this proceeding, are one and the same person; that Bartel has always recognized that he is the person to whom the decree refers as "Frank Barth"; that no writ of injunction was ever issued on the decree against Bartel, but that he was represented in court when the decree was rendered, and had full knowledge of it; that ever since it was rendered he has been engaged, as agent for a foreign brewing company, in maintaining on the premises described in the decree a place where intoxicating liquor was and is kept with intent on his part to sell it in Decorah in violation of law; that at various times between January 1, 1896, and September 1, 1897, he did, in violation of the decree and of law, sell in various places in Decorah to different persons, intoxicating liquors, in violation of law; and that by reason of the various sales he is in contempt of court. The affidavit asked that Bartel be required to show cause, if any he had, why he should not be punished for contempt. Bartel appeared and demurred to the affidavit, but the demurrer was overruled, an answer to the affidavit was filed, and to that Cameron filed a reply. There was a hearing on the issues thus formed, which resulted in the judgment which the plaintiff asks to have reviewed.

I. The plaintiff contends that the affidavit was insufficient to charge a contempt, in that it charged that he, "either by himself or agent or servant," unlawfully sold intoxicating liquor, and that it also alleged that he was the agent of another. It was quite possible for the plaintiff to have acted through the medium of a subagent for whose acts he was responsible, but in addition to the averment to which the plaintiff objects are others which charge that he committed the unlawful acts described, and also that he committed them as an agent. The...