Merrifield v. Swift

• Decision Date: 12 October 1897
• Parties: MERRIFIELD v. SWIFT ET AL.
• Court: Iowa Supreme Court

103 Iowa 167

72 N.W. 444

MERRIFIELD

v.SWIFT ET AL.

Supreme Court of Iowa.

Oct. 12, 1897.

Appeal from district court, Keokuk county; D. Ryan, Judge.

This is an action in equity to enjoin the continuance of a liquor nuisance. Swift made default. A decree was entered against the defendants, abating the nuisance, enjoining the carrying on of the business, and ordering the building closed for one year; also, that the furniture, fixtures, and movable property in said building be sold, and the proceeds of such sale applied in payment of the costs. The costs, including attorney's fees and costs of abatement and sale, were decreed to be a lien upon said real estate. The defendant Kraner excepted and appeals. Reversed.Steck & Smith, for appellant.

Hamilton & Donohoe, for appellee.

KINNE, C. J.

The defendant Kraner owned a building in the town of Hedrick, in Keokuk county, Iowa. He resided in the city of Ottumwa. The defendant Swift, in September, 1895, without any lease from Kraner, and without his knowledge or consent, entered said building, and for two or three days illegally sold liquor therein. These sales and Swift's occupancy of the building had ceased prior to the time the petition in this case was filed. Under these facts, there was no occasion to commence this action against the owner of the building. Swift was a trespasser upon the premises. He had no right there whatever, and Kraner did not know that he had ever been an occupant of his building, or selling liquors therein, until the notice in this case was served on him.

The decree below, in so far as it ordered the building closed, and made the costs and attorney's fees and costs of abatement and sale a lien upon the property of Kraner, was unwarranted. Drake v. Kingsbaker, 72 Iowa, 441, 34 N. W. 199;Eckert v. David, 75 Iowa, 302, 39 N. W. 513;Morgan v. Koestner, 83 Iowa, 134, 49 N. W. 80;State v. Lawler, 85 Iowa, 564, 52 N. W. 490;State v. Severson, 88 Iowa, 714, 54 N. W. 347;State v. Price, 92 Iowa, 181, 60 N. W. 514. The decree below, in the respects above mentioned, being erroneous, it is reversed.