Jaroszewski v. Allen

• Decision Date: 22 October 1902
• Parties: JAROSZEWSKI v. ALLEN ET AL.
• Court: Iowa Supreme Court

117 Iowa 632

91 N.W. 941

JAROSZEWSKI

v.ALLEN ET AL.

Supreme Court of Iowa.

Oct. 22, 1902.

Appeal from district court, Dickinson county; F. H. Helsell, Judge.

Action at law for damages. Judgment for plaintiff, and defendants appeal. Affirmed.Arnold & Beebe and L. E. Francis, for appellants.

Harding & Harding and St. Clair & Reigard, for appellee.

WEAVER, J.

The defendant Allen is alleged to have been engaged in selling intoxicating liquors at Arnold's Park, in Dickinson county, and his codefendants are sureties upon the bond given by him for his faithful observance of the mulct law. Plaintiff charges that on the 30th day of August, 1899, the defendant Allen, at his said saloon, unlawfully sold intoxicating liquors to plaintiff's son, by which the latter became badly intoxicated, and unable to care for himself, in which condition he entered a carriage, and attempted to drive to his home, and that by reason of his drunken condition he was unable to manage the horse, and thus came into collision with a telephone pole standing within the limits of the highway, throwing the young man to the ground, and inflicting injuries causing his death; that said deceased was contributing to the support of plaintiff up to the date of the accident, and that by reason of defendant's wrongful act, and the resulting death of said son, plaintiff has been injured in his means of support, for which he asks damages. The defendants deny that the alleged sales were unlawfully made, and allege that the business was being lawfully carried on in accordance with the terms of the mulct law. They further say the death of plaintiff's son was caused by the negligence of the telephone company in placing the pole against which the deceased was thrown in dangerous proximity to the traveled way. During the progress of the trial the plaintiff was allowed to amend his petition by adding a count alleging that he had a contract with his son, by which the latter was to support his parents during the remainder of their lives in consideration of certain property received. The filing of this amendment was objected to, and defendants' demurrer thereto was overruled, but the record before us does not indicate that any exception was preserved to such rulings. Later in the trial, plaintiff having announced that he rested his case, defendants moved for a directed verdict in their favor on the grounds: (1) That Allen was shown to have been conducting a saloon in accordance with the mulct law; and (2) that there was no evidence that the sales to plaintiff's son were unlawful. After this motion was filed, plaintiff asked leave to reopen his case to file a further amendment and to offer additional testimony. This application was granted, with leave to defendants to take a continuance at plaintiff's costs if they should so elect, but, failing to do so, the trial proceeded to a verdict.

1. It may be said at the outset there is serious doubt whether the record before us is such as to give this court any jurisdiction. The abstract simply states “that within the statutory period due and sufficient notice of appeal was served on plaintiff and his counsel and the clerk of the district court.” This statement is a conclusion of law, and embodies no fact which enables this court to determine for itself whether the notice was served in time to entitle the appellants to a hearing. It is further to be said that the record does not disclose any exception to the...