State ex rel. Swanson v. Heaton

• Decision Date: 07 May 1946
• Docket Number: 46876.
• Citation: 22 N.W.2d 815,237 Iowa 564
• Parties: STATE ex rel. SWANSON, County Atty., v. HEATON et al.
• Court: Iowa Supreme Court

22 N.W.2d 815

237 Iowa 564

STATE ex rel. SWANSON, County Atty., v. HEATON et al.

No. 46876.

Supreme Court of Iowa

May 7, 1946

Lee R. Watts, of Corning, and Paul W. Richards, of Red Oak, for appellants.

R J. Swanson and Floyd E. Billings, both of Red Oak, and Charles H. Scholz, Asst. Atty. Gen., of Iowa, for appellee.

OLIVER Justice.

This action was instituted December 19, 1945, in the name of the state by the county attorney. The petition alleges defendant Eva R. Heaton, owns certain premises upon which the other defendants are and have been operating an unlicensed road house where intoxicating liquors have been and are unlawfully sold and dispensed, gambling devices maintained and used, and drunkenness and breaches of the peace permitted; that said premises and such operation constitute a public nuisance which will be continued unless abated and enjoined. Plaintiff prays that the premises be adjudicated a public nuisance, and abated as such, that the premises be closed and taxed and the personal property be disposed of as provided by law and that defendants be enjoined from violating the laws relative to gambling and liquor and from operating a roadhouse.

The attorney for defendant Darrel Thomas, and for his wife, defendant Anita Thomas, made application for stay of further proceedings until Darrel's release from military service. The application states Darrel is the owner of the business is in military service in the state of Washington and expects to be shipped overseas, and that his presence is essential to the proper preparation and presentation of his defense. In support of the application defendant Jesse Thomas, father of Darrel, testified Darrel owned the business and the personal property, which was of considerable value, and had operated the business until his induction into the army about August 1, 1945; that Darrel's wife, defendant Anita, continued such operation for several months and then went to the place where Darrel was stationed; that thereupon Jesse and Jesse's wife took over and have since operated the business for Darrel and in Darrel's name that Darrel was home once on furlough; that while Darrel's wife was in charge the place was raided. An amendment to the answer of Jesse and his wife alleges that January 24, 1946, the township trustees granted Darrel a license to operate the roadhouse.

The Soldiers' and Sailors' Civil Relief Act of 1940 provides in part that at any stage thereof, an action in which a person in military service is involved, shall, on application by such person, be stayed, 'unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.' 50 U.S.C.A. Appendix, § 521.

We have said the act should be construed broadly and liberally for the protection of the rights of the service man, keeping in mind, however, that it is to be used as a shield for defense and not as an instrument for the oppression of opposing parties. Semler v. Oertwig, 234 Iowa 233, 241, 12 N.W.2d 265. Whether the ability of the service man to prosecute or defend is materially affected, is to be determined by the court in the exercise of a sound judicial discretion. Gilbride v. City Algona, Iowa, 20 N.W.2d 905; Ratliff v. Ratliff, 234 Iowa 1171, 1176, 15 N.W.2d 272; Heck v. Anderson, 234 Iowa 379, 12 N.W.2d 849.

The right of the service man to a stay depends upon the circumstances of each case, and the nature of the action, or his relation to it, or his...