Lewis v. Brennan

• Decision Date: 12 March 1909
• Citation: 120 N.W. 332,141 Iowa 585
• Parties: GEORGE LEWIS v. HUGH BRENNAN, Judge, Defendant
• Court: Iowa Supreme Court

120 N.W. 332

141 Iowa 585

GEORGE LEWIS v. HUGH BRENNAN, Judge, Defendant

Supreme Court of Iowa, Des Moines

March 12, 1909

Certiorari to Polk District Court.

A DECREE was entered in the district court of Polk County permanently enjoining J. C. Cain and Minnie Cain from keeping, using and maintaining the premises described, to wit, lot 8, in block 8, in Enterprise, Polk County, as a nuisance, and from selling or keeping for sale therein, or anywhere in said county, intoxicating liquors, and a writ of abatement was ordered to "be issued in this cause directed to the sheriff of this county directing and commanding him forthwith to seize all the intoxicating liquors of whatever kind found in said building or upon said described premises, and destroy the same, together with the vessels containing such liquors, and that he levy upon and advertise and sell such fixtures found in said building and used in maintaining said nuisance, as provided by law. . . . And the sheriff is further ordered to effectually close said building against the use for the keeping or sale of intoxicating liquors, and keep it securely closed for the period of one year, unless sooner released as provided by law." On January 14, 1908, Minnie Cain moved that the decree be so modified that the building be used for lawful purposes, supporting the same by a showing that J. C. Cain had departed this life; that she had never willfully violated the liquor laws; that she could rent the property for legitimate purposes, and was in need of the income for the support of her family. The motion was overruled, for that the building was "closed as provided by the decree of Judge Howe as to the unlawful sale or keeping for sale of intoxicating liquors." On February 11, 1908, information was filed, charging that Minnie Cain, Hal Ferguson, and F. E Montgomery had entered the building and used it in violation of the decree. These parties were brought into court on precept duly issued, and on such hearing as was had an order entered that the court;

Having heard the statements of counsel and the admission of the parties, in open court, finds that the building described has not been used for any illegal or unlawful business, and the court further finds that heretofore, on the 18th day of January, the defendant Minnie Cain submitted to the court a motion to modify the decree of injunction heretofore entered in the case of W. C. Barber v. J. C. Cain, and that upon said hearing this court refused to modify said decree, but declared on said hearing that the injunction granted in said case provided only against the unlawful sale or keeping for sale of intoxicating liquors, and that the injunction as so construed by this court has not been in any way or manner intentionally violated by the defendants herein. And the court further finds that at the time of the granting of the injunction referred to the attorney for the plaintiff presented and insisted upon a decree forbidding the use of the premises referred to in the information herein for any use for the period of one year, and that at said time the judge granting the injunction refused to grant a decree for any purpose except for the purpose of forbidding the sale of intoxicating liquors or keeping the same for sale upon said premises, and that no exception was taken of said decree, and that same has never been changed, modified or reversed. And the court further finds that the said premises were closed upon the verbal order of the judge granting said decree, with verbal instructions to the sheriff that the closing of said building should be temporary only. The court further finds that the defendant Minnie Cain, wife of the late John C Cain, has not sold intoxicating liquors upon said premises nor kept the same for sale thereon, and that she never did anything relative thereto except under the directions of her late husband, and the court further finds that J. C. Cain, husband of said Minnie Cain, departed this life in December, A. D. 1907, and that the said Minnie Cain is the mother of six minor children, depending upon her for support, and that the use of said building is the sole means of support of the said Minnie Cain and her children. And it appearing to the court that the defendants and each of them has in no manner willfully or intentionally violated the terms and provisions of the decree or injunction referred to, and that the plaintiff has failed to establish each and all of the allegations of the information herein, upon which the defendants were cited to appear in this court, it is therefore ordered and adjudged that the defendants and each of them be, and they are hereby, discharged.

Thereupon this proceeding in certiorari was begun to test the legality of the order.--Dismissed.

Case Dismissed.

Dunshee & Dorn, for plaintiff.

W. A. Spurrier, for defendant.

OPINION

LADD, J.

The decree which the accused are said to have violated ordered the sheriff "to effectually close said building against the use for the keeping or sale of intoxicating liquors, and keep it securely closed for the period of one year, unless sooner released as provided by law." Subsequently one of the defendants therein asked that it be modified, so as to permit occupation of the building for other purposes, but the application was denied, with the significant statement that "the building is to be closed . . . as to the unlawful sale or keeping for sale of intoxicating liquors." No bond appears to have been tendered, as exacted by section 2410 of the Code, and permission to open was not sought...