Drake v. Kingsbaker

• Decision Date: 07 October 1887
• Citation: 34 N.W. 199,72 Iowa 441
• Parties: DRAKE v. KINGSBAKER
• Court: Iowa Supreme Court

34 N.W. 199

72 Iowa 441

DRAKE v. KINGSBAKER

Supreme Court of Iowa, Des Moines

October 7, 1887

Appeal from Wapello District Court.

THIS is an action in equity for an injunction to restrain the appellant, and other parties who were made defendants, from selling intoxicating liquors upon certain premises owned by the appellant. A hearing was had, which resulted in a decree against all of the defendants, at their costs. B. Kingsbaker appeals.

REVERSED.

Williams & Jacques, for appellant.

W. S Coen, for appellee.

OPINION

ROTHROCK, J.

The facts in the case are not the subject of dispute. It appears that the appellant is the owner of a certain building in the city of Ottumwa. On the 9th day of December, 1886, he leased the first story of the building to Thomas Egan. The lease was in writing, and contained a stipulation in these words "The second party [Egan] covenants that he will use said premises as a restaurant, and that he specially will not use said premises for unlawful purposes; and it is further agreed that, if said building shall be used for unlawful purposes the first party may put second party out on giving three days' notice in writing." Soon after making the lease, appellant left Ottumwa, and went to the state of California. He left no agent at Ottumwa. This suit was commenced on the 24th day of December, 1886. Notice of the suit was served on the appellant's brother on that day, who immediately called on appellant's attorney, and on the same day a notice was served on Egan demanding that he quit the premises within three days, as provided in his lease; and on the 1st day of January, 1887, Egan left said premises, and surrendered the possession to appellant, and said building has not been used since that time for any purpose. The evidence showing the unlawful sales of intoxicating liquors, and upon which the decree adjudging the defendants guilty of keeping a nuisance was based, was as follows:

E. L. Monroe, a witness for the plaintiff, testified that he "knew a two-story brick building on south-west side Green street, Pickwick. Was in there 23d December, 1886. I purchased a drink of whisky and half a pint of whisky there. There was a new pine bar in there, and a partition built across it; a few chairs. They had a bottle in their inside coat pocket, and when I called for a drink they pulled it out, and gave me a drink. They had common whisky glasses. When I got the half pint they both went down in their pockets. The building was No. 827. Cross-Examination. Don't know either of the men I got it of. Didn't see any table. They had a few boxes of cigars, and a few packages of smoking tobacco is all they had in sight for sale. Only liquor I saw came out of men's pockets. Don't know the number of the lot, nor whether first or second brick building. Redirect-Examination. If I remember right, it was 827; may have been 829. Recross-Examination. 829 is the number on my memorandum. I worked this case up for pay, and get pay if I am successful; and, if not, don't get anything."

This evidence was sufficient to authorize a decree against Egan. But it appears from the evidence that appellant, who was the owner of the building, had no knowledge that his building was being used for any unlawful purpose. He leased it for a lawful purpose, and was careful to provide for an almost immediate vacation of the building by Egan in case it should be used for unlawful purposes. There is no evidence authorizing the conclusion that the appellant acted in bad faith. The whole record, including the prompt and...