Dickinson v. Eichorn

• Decision Date: 29 October 1889
• Citation: 78 Iowa 710,43 N.W. 620
• Parties: DICKINSON v. EICHORN.
• Court: Iowa Supreme Court

78 Iowa 710

43 N.W. 620

DICKINSON

v.EICHORN.

Supreme Court of Iowa.

Oct. 29, 1889.

Appeal from district court, Dubuque county; D. J. LINEHAN, Judge.

This is an action in equity by which the plaintiff seeks to enjoin the defendant from keeping and maintaining a nuisance by unlawfully selling intoxicating liquors in a certain room in a building in the city of Dubuque. The defendant, among other defenses, pleaded that by the decree of said court, entered at the May term, 1888, in a certain action for an injunction against the defendant in which one Lundbeck was plaintiff, the same was granted against the defendant, which is prayed for in this action, which decree remains in full force. There was a hearing upon the merits, and from a decree dismissing the petition the plaintiff appeals.

GRANGER and BECK, JJ., dissenting.

S. P. Adams, for appellant.

Fouke & Lyon and McCeney & O'Donnell, for appellee.

ROTHROCK, J.

It is not denied by the appellant that the keeping of the identical saloon was enjoined by a decree of the district court, entered on the 4th day of September, 1888, and that said decree is still in full force, and there is neither allegation nor proof tending to show that said decree may not be fully enforced. In addition to this state of the record the plaintiff and the defendant entered into the following written stipulation of facts, to-wit: “It is stipulated that heretofore, to-wit, in the September term, 1885, of this court, a suit was commenced in the name of J. B. Lundbeck against the present defendant; that the petition was filed August 4, 1885; that the objects of said suit and the present one are the same, to-wit, the suppression of the sale of intoxicating liquors upon said premises as a saloon; that, whilst the nominal plaintiff is different, the suits were instituted at the instance of the citizens' law and order league of Dubuque, an unincorporated society, whose object was the suppression of the saloons of Dubuque as public nuisance; that the attorney in both suits is the same, and that no one is personally responsible for attorney's fees in said suits, said attorney looking solely to what may be obtained by way of costs in said suits for his compensation; that no change had been made in the business of said defendant from the time said first suit commenced down to the time of the trial of the present action; that no new saloon has been established upon said premises since the commencement of the present action; that said first suit was tried at the May term, 1888, of this court, and decree rendered therein on the 4th day of September, 1888, of which the following is a copy: ‘Decree and writ of injunction as prayed, restraining defendant from maintaining the nuisance described in plaintiff's petition, and restraining the use of the building described for the purposes of said nuisance, and that said nuisance be abated in the manner provided by law. Judgment against defendant for costs, including attorney fee of $35. Execution.’ ” The foregoing stipulation of facts was introduced in evidence upon the trial. The question for determination is, can this second action be maintained and another decree entered for precisely the same thing? that is, for enjoining and abating the same nuisance which is already enjoined and ordered to be abated. It is to be observed that it is conceded that the former decree is in full force, and no reason is stated anywhere in the record, nor even suggested in argument, why it has not been enforced. If a showing were made that the decree was obtained by collusion with the defendant, for the purpose of allowing it to remain without enforcement, and that the same is therefore a fraud upon the court, and intended as an evasion of the law, there might be some ground for maintaining this action; but we need not determine that question, because it is not presented in this record.

Counsel for appellant appear to be of opinion that the action may be maintained because the time alleged in the petition during which the nuisance was maintained is not the same as in the first action. The rule invoked has no application in an action like this. If, in an action to recover damages for a nuisance, the plaintiff recovers a judgment, and that defendant continues to maintain the nuisance, successive actions may be maintained; but it is apparent that in this class of actions one valid injunction is as effective as a thousand would be. In Livingston v. Gibbons, 4 Johns. Ch. 570, it was held that, where an injunction has been already granted, a second injunction will not be granted while the first is in force. It is true that the plaintiffs in the two actions are not the same, but it is stipulated by the parties that both are prosecuted in the same interest, and the attorney for the plaintiffs in both of the actions is the same. It is not stipulated that the attorney was the same in both actions, but that he is now the attorney in both. It is therefore a pertinent inquiry, why does he not order process upon the decree he already controls? It is to be remembered that these are not actions for private nuisances. The plaintiff, as a citizen of the county, stands for and represents the public. Littleton v. Fritz, 65 Iowa, 488, 22 N. W. Rep. 641. If the claim made by counsel for appellant should be sustained, every citizen of a county might maintain an action for an injunction at the same time, and each demand a decree in his action enjoining and abating the same liquor nuisance. We cannot consent to establish a rule which might lead to a multiplicity of suits when one action will accomplish the same result.

It is said that the defendant is a persistent violator of the law. If so, the decree entered more than one year ago should have been enforced instead of seeking another decree, which will be of no more binding force than the first. Because a defendant is a criminal, is no reason why the plainest principles of the law of former adjudication should be disregarded. Affirmed.

GRANGER, J., ( dissenting.)

I am unable to concur in the conclusion announced in the majority opinion. I think the opinion fairly announces the question to be determined in the case, which is: Is a decree for an injunction, and the abatement of a saloon nuisance, obtained by a citizen of a county, which is not enforced, a bar to a suit for the same purpose by another citizen of the county for the abatement of the same nuisance? To have the case well in mind let the facts be again briefly stated: Lundbeck obtained a decree for an injunction, and the abatement of the nuisance in question, against this defendant. That decree, so far as the record discloses, is enforceable, but not enforced, and the record makes no showing why it is not done. The nuisance still continues. The theory of the majority opinion is that Lundbeck, in obtaining the decree, acted on behalf of the public, and that one decree or injunction is as good as a thousand. I readily accede...