Chamberlain v. Brown

• Decision Date: 23 November 1909
• Citation: 123 N.W. 161,144 Iowa 601
• Parties: CHAMBERLAIN v. BROWN.
• Court: Iowa Supreme Court

144 Iowa 601

123 N.W. 161

CHAMBERLAIN

v.BROWN.

Supreme Court of Iowa.

Nov. 23, 1909.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

This is an appeal from an order of the trial court denying an application for temporary injunction. Affirmed.Guernsey, Parker & Miller, for appellant.

Read & Read, for appellee.

EVANS, C. J.

The parties to this case are the same as in the case of like title reported in 141 Iowa, 540, 120 N. W. 334. The decree appealed from in the cited case was entered in the lower court on January 28, 1908. On April 18, 1908, plaintiff's petition was filed in this case. It is based upon alleged breaches of the same lease as was involved in the former case. The following is an epitome of the breaches charged: (a) Removal and sale of lavatories from basement barber shop. (b) Removal of closet bowl and substitution of slop sink. (c) Removing nine-inch brick wall seven feet long and eight feet high in basement, thereby changing the size and shape of a hall and adjacent room. (d) Changing and removing radiators. (e) Cutting hole five by six feet through a nine-inch brick wall between bakery and boiler room, and extending bake oven through said hole into the boiler room. (f) Constructing brick pillars in boiler room to serve in lieu of wall, and extending oven smokestack into and through boiler room, increasing the heat thereby. (g) Removing brick walls in refrigerator rooms. (h) Changing position of and substituting electric motors. (i) Removing from premises and selling for his own account electric motor and mangle which were property of plaintiff annexed to her real estate. (j) Cutting holes eight to twelve inches in diameter in the floor and walls, and inserting brine pipes therein. (k) Experimenting with smoke consumers, thereby altering and injuring the boilers, boiler flues, and furnaces. (l) Installing a supplemental ventilating system, and incidental thereto cutting large holes through the brick basement walls of the building and constructing box ventilating passage therein. (m) Removing closet and marble base from butler's pantry. (n) Changing the position of many electric light fixtures, and running electric wires through tubes attached to the walls of the building. (o) Cutting window ledge, removing radiator and pipes, and making and leaving a hole in tile floor of the barber shop. An injunction was prayed against any further alterations or changes in the buildings without the consent of the plaintiff, and it was prayed that temporary writ of injunction issue. Upon presentation to the court of the application for temporary injunction, without notice to the defendant, the trial court on May 5, 1908, entered an order directing the same to issue upon the filing of a bond. On May 7th, no bond having been filed, and no writ having issued, the defendant appeared and answered and filed a motion to set aside the order of May 5th. On May 9th a hearing was had upon said motion. The plaintiff supported her application by affidavits. The defendant produced witnesses and examined them orally, the plaintiff objecting to this method of proof. After hearing, the district court set aside the order of May 5th, and the plaintiff has appealed.

1. Plaintiff's first complaint is that the court erred in permitting the defendant to introduce oral testimony at such hearing. Her contention is that under Code, § 4359, only affidavits could be received in evidence. We cannot sustain this view. This section is permissive only as to the use of affidavits on such a hearing. The fact that defendant produced his witnesses and submitted them to...