Hamilton v. Baker

• Decision Date: 17 May 1894
• Citation: 58 N.W. 1080,91 Iowa 100
• Parties: A. H. HAMILTON v. N. BAKER, Appellant
• Court: Iowa Supreme Court

58 N.W. 1080

91 Iowa 100

A. H. HAMILTON v. N. BAKER, Appellant

Supreme Court of Iowa, Des Moines

May 17, 1894

Appeal from Wapello District Court.--HON. A. R. DEWEY, Judge.

ACTION to enjoin the maintaining of a liquor nuisance. Decree for plaintiff, and the defendant appealed.

Affirmed.

W. H C. Jaques for appellant.

Coen & Siberell for appellee.

OPINION

GRANGER, C. J.

I.

The petition represents that the defendant Baker is the owner of certain premises, on which George Silvers and Patrick Swift were maintaining a nuisance, by the keeping and sale of intoxicating liquors. The district court found the facts against all of the defendants, and granted a permanent writ of injunction. The defendant Baker alone appeals, and the questions in the case, on its merits, are of fact.

We may say, that on the question of the place being maintained as a nuisance, there is really no doubt. Intoxicating liquors were kept there, and sold, in violation of law. On the question of defendant Baker's knowledge of the facts, the case is also quite clear. As a saloon, the place was quite notorious for such a length of time that, in reason, he would, as a citizen of the place, have known the fact; and written notice thereof was left at his home. The circumstances were such that, if it were not true that he knew the facts, he would in reason, have taken the stand, as a witness, and have denied such knowledge.

II. Appellee asks that an attorney's fee of one hundred dollars be allowed for prosecuting the cause in this court. Appellant insists--First, that under the law there should be no allowance in this court; and second, that if a fee is to be allowed, the amount asked is excessive.

In Farley v. O'Malley, 77 Iowa 531, 42 N.W. 435, it was held that the plaintiff was entitled to an attorney's fee, "in whatever court" the service was rendered. In that case it was allowed for service in the federal court. The language of the law is, "The plaintiff shall be entitled to an attorney's fee of not less than twenty-five dollars, to be taxed and collected as costs against the defendant." It is as important to have the assistance of an attorney in this as in the district court and the law specifies no court where the fee is to be allowed. A reasonable construction of the law is that it shall be allowed in any court where such a service is properly rendered; and, as it is a matter of costs in the court, the court where it is rendered may...