Tuttle v. Bunting
| Decision Date | 11 April 1910 |
| Citation | 125 N.W. 844,147 Iowa 153 |
| Parties | E. V. TUTTLE, Appellee, v. FRED BUNTING and THOMAS OCHAMPAUGH, Appellants |
| Court | Iowa Supreme Court |
Appeal from Carroll District Court.--HON. F. M. POWERS, Judge.
ACTION to enjoin an alleged liquor nuisance. From a decree for plaintiff, defendants appeal.
Affirmed.
L. H Salinger, for appellants.
M. S Odle, for appellee.
This is an ordinary action to enjoin the defendants from maintaining an alleged liquor nuisance in a certain building in the town of Lanesboro in Carroll County. Defendant Bunting pleaded that at the time of filing his answer he did not own the premises in which the saloon had been conducted; that he had parted with his interest therein January 14, 1909. Defendant Ochampaugh pleaded that he had been a barkeeper for his codefendant prior to July 1, 1908, but that on that day he quit the business and had not been engaged in selling liquor on the premises or at any other place. Each also filed the following pleading:
That it is now, and has been ever since the severing by each of their connection with the traffic in said liquors, their intention held in good faith, not to re-engage in said traffic in any manner whatsoever in this judicial district or in the state of Iowa and it is intended by this clause and by this plea of plead an abatement of all matters which the complainant has asked to be relieved against. With the purpose of giving to the complainant herein all relief and all advantage he could have, should a decree of permanent injunction issue herein, these defendants do now by this paper consent that, though no such decree shall issue, judgment shall be entered against them not only for the costs that have accrued to this time in the cause, but for all costs which could properly accrue, should a permanent decree issue, including the fee for complainant's attorney; said judgment to be entered upon computation of the clerk by the direction of the court.
On this pleading they asked that no decree be entered against them and no judgment save for costs tendered as above. The case, upon these issues, was tried to the court upon an agreed statement of facts made by and between the parties and duly filed of record in the case. In this it was stipulated and agreed:
It is stipulated and agreed by and between the parties hereto: That the cause shall be submitted to the court upon the following agreed statement of facts; the plaintiff being represented in this agreement by his attorney, M. S. Odle, and the defendants being represented by their attorneys, B. I. Salinger and L. H. Salinger. That the defendant Fred Bunting was at the time of the commencement of this action engaged in the sale of intoxicating liquors upon the following described premises, to wit, lot 1, block 13, in the town of Lanesboro, Carroll County, Iowa, and that the said Fred Bunting was the owner of the above-described premises. That Thomas Ochampaugh was a clerk and bartender for the said Fred Bunting and engaged in the sale of intoxicating liquors in said building. That, to wit, on May 4, 1908, a hearing was had against the said defendants Fred Bunting and Thos. Ochampaugh and finding made that the said defendants had been engaged at the time of the commencement of this action in the illegal sale of intoxicating liquors on said premises, and a temporary injunction issued against the said defendants, which is still in full force and effect. That on July 28, 1908, a hearing was had against the said defendants for contempt of court for violating the injunction, which was issued against them on May 4, 1908, and a finding made that the defendants had violated said injunction by the illegal sale of intoxicating liquors within this judicial district. That on or about July 1, 1908, the defendant Ochampaugh ceased to be engaged in the sale of intoxicating liquors for the said defendant Fred Bunting on said described premises, or elsewhere in any way within this judicial district. That on or about the 14th day of January, 1909, the defendant Fred Bunting sold his interest in the said liquor business, and also in the said premises, and ceased operating a saloon and being engaged in the sale of intoxicating liquors or owning or maintaining premises used in any way in said traffic. That the said sale was to a party who has since, and is now, conducting a saloon and a place for the sale of intoxicating liquors on the above described premises; but no complaint has been made in any form that the successor's sales are illegal. It is also stipulated that both defendants are credible witnesses, and that the cause shall be submitted and decided as though they had testified that they had, at the time of the hearing, and when quitting the business, and now have, a good-faith intention not to re-engage in the liquor traffic in Iowa, nor to own or maintain premises in Iowa for said traffic.
The hearing resulted in a decree...
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