McMillan v. Tarashansky

Citation184 Iowa 966,169 N.W. 342
Decision Date16 November 1918
Docket NumberNo. 32347.,32347.
PartiesMCMILLAN v. TARASHANSKY ET AL.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Woodbury County; George Jepson, Judge.

Action in equity to enjoin an alleged liquor nuisance. The petition was dismissed at plaintiff's cost, and he appeals. Reversed and remanded.John F. Joseph, of Sioux City, for appellant.

WEAVER, J.

The plaintiff brought this action in equity, alleging that he is a citizen of Woodbury county, Iowa; that at the date of filing his petition the defendants had been and were engaged in transporting and carrying about on their persons and in vehicles in and about the streets, alleys, and other places in Sioux City and Woodbury county, certain intoxicating liquors with intent to dispose of the same in violation of law; and that unless restrained therefrom by the order of the court they would continue to carry on such unlawful business. Wherefore plaintiff prayed that a temporary injunction issue, restraining the defendants and each of them from continuing said business, and that upon final hearing the temporary injunction be confirmed and made permanent. An original notice was served upon the defendants that the application for an injunction would come on for hearing before the court on a day named. To this proceeding the defendants appeared by counsel and answered, denying the petition. The issues coming on for trial to the court, the plaintiff called to the witness stand certain police officers, who testified that on April 20, 1917, being a few days prior to the filing of the petition herein, they arrested the defendants on Military road in Sioux City; that at the time of the arrest the defendants were together riding in an automobile owned by Tarashansky, and had in their possession 124 bottles of beer and a gallon of whisky. No testimony was offered by or for the defendants in explanation of their possession of the liquors, or of the purpose for which they were being transported. Having heard the testimony, the court held that a sufficient showing for the granting of an injunction had not been made, and that the suit had been begun without reasonable cause. The petition was therefore dismissed, and the costs of the case were taxed to the plaintiff.

The statute provides that--

“Any person who shall, by himself, or his employé, servant or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle, or leave in a place for another to secure, any intoxicating liquor as herein defined, with intent to sell or dispose of the same by gift or otherwise, or who shall...

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