Carter v. Bartel

• Decision Date: 17 January 1900
• Citation: 81 N.W. 462,110 Iowa 211
• Parties: M. C. CARTER v. FRANK BARTEL, THE C. & J. MICHEL BREWING COMPANY and F. B. PORTMAN, Appellant
• Court: Iowa Supreme Court

81 N.W. 462

110 Iowa 211

M. C. CARTER v. FRANK BARTEL, THE C. & J. MICHEL BREWING COMPANY and F. B. PORTMAN, Appellant

Supreme Court of Iowa, Des Moines

January 17, 1900

Appeal from Winneshiek District Court.--HON. A. N. HOBSON, Judge.

THE defendants appeal from a decree enjoining them from maintaining a liquor nuisance.--Modified.

Decree, as against Bartel and the C. & J. Michel Brewing Company, reversed, and affirmed as to Portman.

John B Kaye and Dan Shea for appellants.

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

LADD J. GRANGER, C. J., not sitting.

OPINION

LADD, J.

That the C. & J. Michel Brewing Company was keeping intoxicating liquors for unlawful sale, through Bartel, in their cold-storage building, situated on lots belonging to Portman, is fully established by the evidence. Possibly wholesale liquor venders may suffer inconvenience in being prohibited from making sales of their commodities elsewhere than in a particular building, under fixed conditions. But such is the express provision of the statute. In taking orders at the various saloons of the city, delivering the beer in pursuance thereof, and there receiving payment, sales were made at these places, and not at the cold-storage building. Bartel v. Hobson, 107 Iowa 644, 78 N.W. 689; Cameron v. Fellows, 109 Iowa 534, 80 N.W. 567.

II. It appears from the evidence that in an action by James L. Cameron against C. & J. Michel, a co-partnership consisting of C. Michel and J. Michel, and Frank Bartel, a decree of permanent injunction was entered, November 27, 1894, restraining them from the illegal sale of intoxicating liquors on the premises in controversy or within the Thirteenth judicial district. Included in the decree was the usual order of abatement. Bartel was misnamed "Barth" in the decree, but admits himself to be the person intended. Indeed, notwithstanding the misnomer, he has been punished for contempt thereunder. See Bartel v. Hobson, supra. The evidence also shows the C. & J. Michel Brewing Company to be a co-partnership, and the firm identical with and composed of the same persons as C. & J. Michel. As to these parties, then, the decree of 1894 was as effective as the one prayed for could be. Dickinson v. Eichorn, 78 Iowa 710 (6 L. R. A. 721, 43 N.W. 620); Steyer v. McCauley, 102 Iowa 105, 71 N.W. 194. Carter v. Steyer, 93 Iowa 533, 61 N.W. 956, differs from this case in that there the premises involved were not the same as in the former action. The question raised in the authorities relied on by the appellee was whether the persons accused, though not particularly named, were included in the language of the decrees. Here the defendants mentioned have not only pleaded, but proven, that they were parties thereto and designated as such. The plea that these defendants had already been enjoined, precisely as prayed, should have been sustained.

III. Portman, the owner of the lots, was not a party to the former action, and as, by section 2384 of the Code, the ground, in such a case, is declared a nuisance, the decree was rightly entered against him and the land. Code, section 2405; Gray v. Stienes, 69 Iowa 124, 28 N.W. 475.

IV. A fee of one hundred and twenty-five dollars was taxed in favor of the plaintiff's attorney. Section 2406, relating to trial in the district court, provides that, in suits to enjoin nuisances, "if the plaintiff is successful in the action, an attorney's fee of twenty-five dollars shall be taxed in his favor." The law as it formerly stood required the taxation of a reasonable fee of not less than twenty-five dollars. Acts Twenty-first General Assembly, chapter 66, section 1. In making this change, and prescribing a definite amount, the intent of fixing an arbitrary sum to be allowed is apparent. This statute must be construed with section 2429 of the...