Nichols v. Thomas

• Decision Date: 16 October 1893
• Parties: NICHOLS v. THOMAS.
• Court: Iowa Supreme Court

89 Iowa 394

56 N.W. 540

NICHOLS

v.THOMAS.

Supreme Court of Iowa.

Oct. 16, 1893.

Appeal from district court, Floyd county; J. C. Sherwin, Judge.

Action to enjoin a saloon nuisance. Decree for plaintiff, and the defendant appealed.J. S. Root, for appellant.

Ellis & Ellis, for appellee.

GRANGER, J.

1. The controversy is as to the sufficiency of the evidence to warrant a finding that the defendant was engaged in the sale of intoxicating liquors contrary to law. It is made to appear that the defendant kept a billiard saloon and sold ginger ale. There is no direct testimony that he sold intoxicating liquor. It does appear that persons in the habit of drinking such liquor frequented his place of business, and people were seen to leave there intoxicated. The general appearance of the place in many respects, and the odor therefrom, indicated to passers-by that intoxicating liquors were sold there, and there is evidence that it had the reputation of being such a place. The defendant himself admits that liquor had been drank there, but he says that he did not keep it; that it was brought there by others, and “taken out back.” With the fact established that liquor was drank there,--and we are warranted in saying that it was done to quite an extent, to give the place its general reputation and appearance,--we are led to believe, though upon quite meager testimony, that the place was maintained as a nuisance. It is hardly probable that persons would purchase liquor elsewhere, and seek out defendant's place to drink it and become intoxicated to such an extent as to stamp his place, in the estimation of people, as a liquor saloon, if it was kept exclusively for other purposes. If we are mistaken as to the facts, it is because the defendant has permitted surroundings and a course of conduct consistent with his guilt. We think, as did the district court, that the fact of the nuisance is established.

2. The court allowed an attorney's fee of $100, and it is claimed to be excessive. The testimony shows that on a hearing for a preliminary injunction and on the final trial about four days were used, including some preparatory work. The testimony shows that it was worth $25 per day. The case seems to have been quite vigorously contested, and in any other case we do not think such a fee would be regarded as unreasonable. The law permits a reasonable fee. The judgment is affirmed.