In re Thoma

• Decision Date: 23 May 1902
• Parties: IN RE THOMA.
• Court: Iowa Supreme Court

117 Iowa 275

90 N.W. 581

IN RE THOMA.

Supreme Court of Iowa.

May 23, 1902.

Appeal from district court, Jefferson county; Frank W. Eichelberger, Judge.

The applicant was granted a permit to sell intoxicating liquors for pharmaceutical and other purposes. Remonstrants appeal. Reversed.Raney & Simmons and A. G. Jordan, for appellants.

Leggett & McKemey, for appellee.

LADD, C. J.

The statute requires the applicant for a permit to plead and prove that “he has not been adjudged guilty of any violation of the law relating to intoxicating liquors within two years next preceding the making of his application.” The plaintiff's petition was filed August 7, 1900. February 2d of that year, with his then partner, he had been temporarily enjoined, upon hearing, from keeping for sale or selling intoxicating liquors in the identical place described in his application for a permit; and on April 17th this injunction was made perpetual. True, the last decree was entered by consent; but, because of this, it was not any the less an adjudication, for the purposes of that case, than if the result of a hearing on the merits. 21 Am. & Eng. Enc. Law, 267. While the applicant and his partner did not, in that suit, expressly acknowledge “any civil or criminal liability,” and proposed, ostensibly “in the spirit of compromise,” and to avoid litigation: First, to surrender a permit then held by Thoma; second, that the writ of injunction issue as prayed, and costs, including attorney's fee, be paid by them; third, to obey the law in the future; and, fourth, all these things upon the condition that no further prosecution be instituted or encouraged against them, and that they have 30 days to dispose of any stock of liquors on hand at wholesale, or retain the same to be sold as permitted by registered pharmacists according to law,--yet guilt is nowhere denied, and the remedy consented to necessarily implied the admission of having maintained a place wherein intoxicating liquors had been either illegally kept for sale or sold. In other words, without expressly owning up to the charges made against them, they consented to precisely such a decree as would have been entered had the charges been fully proven upon trial. It is elementary law that such a decree is as much an adjudication as though hearing had been had on evidence introduced and argument. By consenting to it, all defenses were waived, and, regardless of the terms in which the agreement was clothed, the...