Straeten v. Lewis
| Decision Date | 02 February 1889 |
| Citation | 41 N.W. 594,77 Iowa 130 |
| Parties | VER STRAETEN v. LEWIS, JUDGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Certiorari to district court, Poweshiek county; W. R. LEWIS, Judge.
Plaintiff was accused of contempt in disregarding an injunction. On a hearing before the district court of Poweshiek county, he was found guilty and sentenced to pay a fine, and to be imprisoned in the county jail. He then sued out a writ of certiorari from this court, which was served on the judge, who for return to the writ has certified the record of the proceedings to us.
Scott & Clute, for plaintiff.
A. J. Baker, Atty. Gen., for defendant.
1. The writ enjoined plaintiff from unlawfully selling any intoxicating liquors, including ale, wine, and beer, and from keeping, or being concerned in keeping, the same for sale, contrary to law, either by himself, or agents, clerks, porters, or lessees, upon the following described real estate, situated and lying in Poweshiek county, Iowa, to-wit: “Part of lot number two, in the N. E. quarter of the N. W. quarter of section twenty-three, township number eighty north, of range number fourteen west, until otherwise ordered by the court.” It was contended that the writ was void for uncertainty; that a writ or order for the abatement of a nuisance which contained no more definite description of the property intended to be affected than that in the writ in question would be void, may be true. In that case, it would not be possible for the officer charged with the duty of executing the writ to determine from its recitals the particular building or place intended. But in this case the principal office of the writ was to prohibit the doing of certain specified acts. In that respect there is no uncertainty in its recitals. Any person, on reading the writ, would understand just what acts were forbidden by it. It prohibits the doing of the acts on “part of lot two,” etc., and the mandate would be violated by doing them on any part of that lot.
2. The evidence, without conflict, shows that plaintiff continued to sell intoxicating liquors after the writ was served. It also shows that he carried on the business in the building used by him for that purpose when the injunction proceeding was instituted. No witness, however, was able to testify from his personal knowledge that the building was situated on lot 2. But one witness did testify that he had examined a plat of the town in which the property is situated, and that he was able to say from that examination, and his knowledge of the location and surroundings, that it is situated on the tract described in the writ. It was contended that the evidence of that witness as to the identity of the property is incompetent, being in the nature of mere hearsay. But evidence relating to the description of real-estate is nearly always of that character, and necessarily so. The primary evidence of the subdivision of land, as a general rule, is found in the record of the surveys. But it is common practice in the courts to admit parol evidence as to the location and description of particular tracts. The manner of numbering the sections of land in a township, and their subdivisions, are matters of common knowledge in this country, where all of the lands are included in regular surveys; and it is perfectly competent in some cases to prove the location of a building or other place,...
To continue reading
Request your trial