McCoy v. Clark

• Decision Date: 21 October 1899
• Citation: 109 Iowa 464,80 N.W. 538
• Parties: MCCOY v. CLARK.
• Court: Iowa Supreme Court

109 Iowa 464

80 N.W. 538

MCCOY

v.CLARK.

Supreme Court of Iowa.

Oct. 21, 1899.

Appeal from district court, Appanoose county; F. W. Eichelberger, Judge.

Action to enjoin the defendant from keeping and maintaining a nuisance in a building described by therein keeping for sale and selling intoxicating liquors in violation of law, and to abate the nuisance. The court found the existence of the nuisance to be established, and plaintiff's attorneys presented for approval a form of decree ordering the destruction of the liquors, the removal and sale of the fixtures, furniture, vessels, and movable property used in conducting the unlawful business, and that the sheriff of the county “effectually close the said building against its use for any purpose prohibited by title 12, c. 6, of the Code of Iowa, as the same is now in force, and so keep it closed for one year, unless sooner released.” The defendant, McCoy, objected to that part of the decree quoted above, and thereupon the court inserted in the decree the words, “but not as against any other use or purpose,” and, as thus changed, approved the same, and to this the plaintiff excepted, and from it he appeals. Reversed.Baker & Moore, for appellant.

Mabry & Payne, for appellee.

GIVEN, J.

1. Sections 2408 and 2410 of the Code are as follows:

“Sec. 2408. Abatement. If the existence of the nuisance be established in a civil or criminal action, an order of abatement shall be entered as a part of the judgment in the case; which order shall direct the destruction of the liquor, the removal from the building or place of all fixtures, furniture, vessels or movable property used in any way in conducting the unlawful business and sale thereof, in the manner provided for the sale of chattels under execution, and the effectual closing of the building, erection or place against its use for any purpose prohibited in this chapter, and so keeping it for a period of one year, unless sooner released. If any one shall break or use a building or place so directed to be closed, he shall be punished as for contempt as provided in the preceding section. For removing and selling the movable property, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution, and for closing the premises and keeping them closed, a reasonable sum shall be allowed by the court.”

“Sec. 2410. Abatement by Owner. If the owner appears and pays all costs of the proceeding, and files a bond with sureties to be approved by the clerk in the full value of the property, to be ascertained by the court, or, in vacation, by the clerk, auditor and treasurer of the county, conditioned that he will immediately abate said nuisance and prevent the same from being established or kept therein within a period of one year thereafter, the court, or, in vacation, the judge, may, if satisfied of his good faith, order the premises closed under the order of abatement to be delivered to said owner and said order of abatement canceled so far as the same may relate to said property; and if the proceeding be an action in equity, and said bond be given and costs therein paid before judgment and order of abatement, the action shall be thereby abated. The release of the...