Drake v. Jordan

• Decision Date: 07 March 1888
• Citation: 36 N.W. 653,73 Iowa 707
• Parties: DRAKE v. JORDAN ET AL.
• Court: Iowa Supreme Court

73 Iowa 707

36 N.W. 653

DRAKE

v.JORDAN ET AL.

Supreme Court of Iowa.

March 7, 1888.

Appeal from circuit court, Wapello county.

Plaintiff, William Drake, asks the abatement of a nuisance, and the restraining of defendants from maintaining the same, and from keeping for sale and from selling intoxicating liquors contrary to law. Decree for plaintiff as prayed. Defendants appeal.John Gibbons and J. J. Smith, for appellants.

D. H. Emery, W. S. Coen, and W. A. Work, for appellee.

ROBINSON, J.

1. After filing their answer, the defendants presented their petitions to the circuit court asking a removal of the case to the federal court. The petition was denied, and objection to that ruling is now made. The grounds of the petitions for removal were substantially the same as those in Dickinson v. Brewing Co., supra. Following our decision in that case, the action of the circuit court in denying the removal is affirmed.

2. The circuit court decreed the closing of the building in which the nuisance had been maintained, for the period of one year, and taxed the sum of $25 against the defendants as an attorney's fee. It is claimed that this action was not authorized by law. This proceeding was commenced in April, 1885, and the trial was had on the 16th day of December, 1886. The objection urged by counsel for appellants is that the closing of the building for one year, and the taxing of an attorney's fee, are only authorized by chapter 66, Acts 21st Gen. Assem.; and to construe that statute to apply to acts done and proceedings pending before it took effect would be in conflict with the provisions of the constitution, which forbids ex post facto laws. But this is a civil, and not a criminal, proceeding, and the provisions of the statute referred to relate to the remedy. The right to a particular mode of procedure is not a vested one which the state cannot change or abolish. Cooley Const. Lim. (5th Ed.) 349, 443; Tilton v. Swift, 40 Iowa, 80;Wormley v. Hamburg, Id. 25; Insurance Co. v. Gleason, 56 Iowa, 48, 8 N. W. Rep. 790;County of Kossuth v. Wallace, 60 Iowa, 509, 15 N. W. Rep. 305. And this is true in criminal as well as in civil cases. Cooley, Const. Lim. 329; Marion v. State, 29 N. W. Rep. 918. We held in McLane v. Bonn, 30 N. W. Rep. 478, that, so far as the act of 1886 prescribed a mode for the abatement of a nuisance, it related to the remedy only, defining the extent and specifying the method of enforcing one already given by statute, and...