Faucher v. Grass

• Decision Date: 23 March 1883
• Citation: 15 N.W. 302,60 Iowa 505
• Parties: FAUCHER v. GRASS ET AL
• Court: Iowa Supreme Court

15 N.W. 302

60 Iowa 505

FAUCHER v. GRASS ET AL

Supreme Court of Iowa, Council Bluffs

March 23, 1883

Appeal from Lucas District Court.

ACTION in chancery to enjoin defendants from carrying on the blacksmith business in a shop built and maintained near plaintiff's dwelling. After a trial upon the merits, a decree was entered as prayed for in plaintiff's petition.

MODIFIED AND AFFIRMED.

Mitchell & Penick, for appellants.

Stuart Bros., for appellee.

OPINION

BECK, J.

I.

The plaintiff, as a ground for dismissing the appeal in this case, shows that Gilbert, Hedge & Co. have acquired the absolute ownership of the blacksmith-shop, by purchase at sheriff's sale, and that they do not claim the right to use it for the purpose of prosecuting therein the business of blacksmithing, and have no desire that the appeal shall be prosecuted for their benefit. The decree rendered by the court below restrains defendants from prosecuting the business of blacksmithing in the shop purchased by Gilbert Hedge & Co., and upon the lot whereon the shop is situated. It appears, from the showing made by plaintiff, that defendants are deprived by the sale of the shop from prosecuting their business in it, without the assent of Gilbert, Hedge & Co., and that firm does not desire the continuance of the shop for blacksmithing purposes, nor claim the right to so use it, and do not desire to prosecute this appeal. The defendants now have no interest in the shop which authorize them to prosecute the appeal, and thereby determine their right to continue their business in the shop. If they possessed such right, it has been lost by the sheriff's sale. We will not determine the case in order to settle the question of costs--the only subject now in the case in which defendants have an interest. As defendants have lost the right they claimed to prosecute their business in the shop, they cannot now ask the court to determine whether they did have such right. The issues of the case are dead. As the case cannot be tried in this court, we cannot determine that defendants should not pay the costs. By abandoning their right to appeal, as they did by parting with the property involved in the case, they cannot now insist that the decree should be in any respect changed as to the shop; the costs must stand against the defendants, who are required to pay them by the decree of the District Court.

II. The decree of the court below enjoins defendants from prosecuting the business of blacksmithing in the shop, or upon the lot whereon the shop is situated. It appears that the lot is owned by defendant, Grass, the shop alone being sold...