Farley v. O'Malley

• Decision Date: 18 May 1889
• Parties: FARLEY v. O'MALLEY.
• Court: Iowa Supreme Court

77 Iowa 531

42 N.W. 435

FARLEY

v.O'MALLEY.

Supreme Court of Iowa.

May 18, 1889.

Appeal from district court, Dubuque county; C. F. COUCH, Judge.

Action to declare a certain place a nuisance, to abate the same, and for perpetual injunction, upon allegations that the same was being kept for the unlawful keeping and selling of intoxicating liquors. The case was instituted on the 4th day of September, 1884, in the district court of Dubuque county, and removed to the federal court, taken on appeal to the supreme court of the United States, and remanded to the district court of Dubuque county, (7 Sup. Ct. Rep. 1373,) February, 1887, in which court it was tried before Hon. C. F. COUCH, Judge, at the October term, 1887, and taken under advisement, parties agreeing that decision might be made in vacation as of the last day of said October term. On the 9th day of February, 1888, said court then being in session, Hon. J. J. NYE, judge presiding, a judgment entry was sent by Judge COUCH from Waterloo to the clerk of the court to be made in said cause, and the same was entered of record. On the trial the plaintiff introduced S. P. Adams as a witness, who testified that he knew the reputation of the defendant's place to be that of a place where intoxicating liquors were sold and kept for sale, and also as to the value of his services as attorney for plaintiff, and as to the amount paid by him to attorneys in Washington who appeared for plaintiff in the supreme court. Plaintiff also offered the third paragraph of defendant's answer. All of this testimony was admitted subject to defendant's objection, and the admission of the same is assigned by defendant as error, with the further assignment that the court erred in allowing an attorney's fee of $100, and that the decree was erroneously entered, there being no authority to enter the same, under the stipulations, after another term of court had commenced, and that the finding should have been for the defendant. The plaintiff assigns as error that the court erred in allowing only $100 attorney's fee, and in failing to grant an injunction as prayed in the plaintiff's petition.S. P. Adams, for appellant.

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

GIVEN, C. J.

1. This action was instituted under the provisions of chapter 143, Acts 20th Gen. Assem. Before trial, chapter 66, Laws 21st Gen. Assem., took effect, wherein it is provided that “evidence of the general reputation of the place designated in the petition shall be admissiblefor the purpose of proving the existence of such nuisance, and, if successful in the action, the plaintiff shall be entitled to an attorney's fee of not less than $25, to be taxed and collected as costs against the defendant.”

It is claimed in behalf of appellant that these provisions do not apply to this case, because it was pending at the time of the passage of the act. The opinions...