State v. Williams

• Decision Date: 09 May 1894
• Citation: State v. Williams, 90 Iowa 513, 58 N.W. 904 (Iowa 1894)
• Parties: STATE OF IOWA v. JAS. L. WILLIAMS et al., Appellants
• Court: Iowa Supreme Court

58 N.W. 904

90 Iowa 513

STATE OF IOWA v. JAS. L. WILLIAMS et al., Appellants

Supreme Court of Iowa, Des Moines

May 9, 1894

Appeal from Marshall District Court.--HON. J. L. STEVENS, Judge.

ACTION in equity for the abatement of a nuisance alleged to have been caused by keeping for sale, and selling, in premises described, intoxicating liquors, in violation of law. There was a hearing on the merits, and a decree from which defendants James L. Williams and H. E. J. Boardman appeal.

Affirmed.

H. E J. Boardman for appellants.

J. L Carney for the state.

OPINION

ROBINSON, J.

When the transactions involved in this case occurred, the appellants were the owners of a certain lot, and building thereon, in the city of Marshalltown. In March, 1891, the appellants leased to Eno Ederhoff two rooms in the ground floor of the building, for the term of one year from the first day of the next May, for the agreed rent of eighteen dollars per month. The lease provided that the premises should be used for the purposes of a restaurant only, and that no violation of the city ordinances or of the statutes in regard to gambling and the suppression of intemperance should be permitted. A failure to perform all the conditions of the lease was made a ground for terminating it by giving three days' notice to quit. The tenant took possession of the premises with his family, which consisted of a wife and several small children. On the fifth day of May he was imprisoned in the county jail, and there remained until the thirty-first day of July. On the seventh day of September, 1891, this action was commenced. The petition alleges that the defendant Mrs. Eno Ederhoff, the appellants, and their agents, have established, and are keeping and maintaining, in the leased premises a nuisance by keeping therein intoxicating liquors, with intent to sell them in violation of law, and by unlawfully selling them therein. On the fourteenth day of September a temporary injunction was allowed, as against Mrs. Ederhoff. On the twenty-seventh day of October the appellants and their agent, C. E. Boardman, filed an answer, in which they denied having in any way established, kept, or abetted any nuisance on the premises, and alleged, upon information, that Mrs. Ederhoff had not been, and was not, keeping liquors for sale, as charged and denied; and denying that she was or had been maintaining a nuisance. On November 6 the cause was heard, as against Mrs. Ederhoff; and a decree was rendered, granting a permanent injunction against her. On the sixteenth day of the same month the trial against the other defendants was commenced, and ended, and the cause was taken under advisement on the eighteenth. At the January term, 1892, it was continued, on submission, and on the nineteenth day of April a decree was rendered, in vacation, against all of the defendants but the agent. It appears that the decree was rendered at that time in consequence of a mistake of the court in regard to the agreement of parties, on which the cause was submitted. In May the appellants moved that the decree be set aside, and that another be then entered in their behalf. The decree was set aside in August. In September the appellants asked leave to file an amended and supplemental answer, which was filed with their motion for leave. The plaintiff moved to strike the answer thus filed, and on the same day the appellants applied for a continuance on the ground of the absence of a witness. The motion for leave to file the supplemental answer and the application for a continuance were overruled, the answer was stricken from the files, and a decree was rendered for the plaintiff. The court adjudged that Mrs. Ederhoff had kept a nuisance, as charged, and that she had maintained it during the trial, and that the appellants had notice of the unlawful keeping for sale, and selling, of intoxicating liquors by her. They were enjoined from permitting the premises to be used for the unlawful sale of intoxicating liquors, and were required to pay an attorney's fee of twenty-five dollars and costs.

I. The evidence shows clearly that Mrs. Ederhoff sold beer in the premises during the summer of 1891, and until about the time the decree was rendered against her. On the seventh day of September, 1891, the grand jury returned an indictment against Mrs. Ederhoff, which accused her of the crime of nuisance, committed by keeping for sale, and selling, in the premises in controversy, intoxicating liquors, in violation of law. On the indictment were indorsed the names of thirteen witnesses. On the fourteenth day of September she entered a plea of guilty, and was adjudged to pay a fine of three hundred dollars, an attorney's fee, and costs. The following was part of the judgment entry: "It appearing to the court that the defendant is in an advanced state of pregnancy, it is ordered that, on payment of costs, order of commitment will be stayed, subject to the direction of the county attorney, or order of court." The costs were paid. On the twenty-fourth day of October a considerable quantity of beer, in bottles was found in the premises. On the eleventh day of November the appellants served a notice to terminate the lease. On the third day of December, Mrs. Ederhoff gave birth to a child, and, twelve days later, the premises were vacated by Ederhoff and family.

We think the evidence fails to show that either appellant had any actual knowledge of the illegal business of Mrs. Ederhoff until after the commencement of this action. The beer was not kept and sold by her in an open and public manner, but some care seems to have been taken to prevent what she did from becoming generally known. Many people passed the place frequently without knowing of the illegal business carried on in it. Mr. Williams left the management of the property to H E. J. Boardman, and he was out of town from July 17 to August 23, and from August 29 to October...