State v. Seeverson

• Decision Date: 28 January 1893
• Citation: 54 N.W. 347,88 Iowa 714
• Parties: THE STATE OF IOWA, Appellant, v. A. R. SEVERSON et al., Appellees
• Court: Iowa Supreme Court

54 N.W. 347

88 Iowa 714

THE STATE OF IOWA, Appellant, v. A. R. SEVERSON et al., Appellees

Supreme Court of Iowa, Des Moines

January 28, 1893

Appeal from Winneshiek District Court.--HON. W. A. HOYT, Judge.

NOVEMBER 12, 1890, John B. Kaye, county attorney, commenced this action in equity to enjoin the defendant Severson from maintaining a liquor nuisance upon the premises described and the defendant Barthell, as owner of said premises, from permitting the same to be so kept and used. Barthell answered, admitting that he had owned the premises since September 9, 1890, under a sheriff's deed on a foreclosure sale against Severson; that Severson and wife were and had been in possession of the premises for some years; and that, after acquiring title, he leased the premises to them by the month. He denied that intoxicating liquors were kept or sold on said premises with his knowledge or consent, and alleged that, upon being served with notice of this action, he caused notice to be served on Severson to quit the premises. Severson answered, admitting that Barthell is the owner of the premises, and denying every other allegation in the petition. The case was submitted at the February term, 1891, and judgment entered dismissing the action. Notice of appeal was served upon the proper parties in August, 1891, and the clerk secured his fees for a transcript.

Affirmed.

John B Kaye, for the State.

George W. Adams and E. R. Acers, for appellees.

OPINION

GIVEN, J.

The case being before us for hearing de novo, we inquire whether, under the evidence, the plaintiff is entitled to an injunction as prayed. The premises described are situated in the business portion of the city of Decorah, and had been owned and occupied by the defendant Severson as a residence and place of business for some years prior to September, 1890. The defendant Barthell, having become the owner of the premises, leased the same by the month to the defendant Severson, who continued to occupy them until the commencement of this action. It appears that Severson had been prosecuted for selling liquors contrary to law in 1887, 1888, or 1889, and we infer from the evidence that during those years, or some part of them, he had maintained the premises as a place for the unlawful keeping and selling of intoxicating liquors. The inquiry now before us, however, is whether the place was so kept or used at the time of the commencement of this action, November 12, 1890.

The evidence relied upon by appellant is, in substance, this: One Anderson testifies that he had been in there several times the past six months. That he drank a glass of beer in there last summer. "Think it was in the first part of July." That Ed. waited on him. "He gave me a bottle of beer the first part of July. I paid twenty cents for it. I drank it out in the back part there. Only drank that one bottle of beer there. That was the time the original package was, in June, or about the fourth of July. Was in there afterwards, and he said he did not have anything to sell after the original package was stopped, he quit." It is a matter of common knowledge that about that time many saloon keepers engaged in selling intoxicating liquors in what they claimed to be the original package, and that, upon the passage of what is commonly known as the "Wilson Bill," by congress, ceased the traffic. It is true it is not pleaded or proven that the defendant Severson was keeping and selling intoxicating liquors as the agent of any person, or that his sales were in the original...