119 Iowa 583 | Iowa | 1903
The essential allegations in the petition filed by plaintiff are that defendant has established, and is keeping, using, and maintaining a certain building, described, as a place for the sale of intoxicating liquors in violation of law, and as a place for the keeping of intoxicating liquors with intent to sell the same in violation of law; also that defendant has heretofore, from day to day;
In a motion for more specific statement, sworn to by defendant, it is stated, as matter of fact, that defendant is a registered pharmacist, and has a permit to keep and sell intoxicating liquors on the premises in the plaintiff’s petition described; and, on the ground that the petition does not state when or to whom defendant sold intoxicating liquors in violation of law, defendant asks the court that plaintiff be required to state in what way defendant has violated the law relative to the sale of intoxicating liquors, and to specify in his petition the illegal sales made by defendant, if any such were made; giving the names of the persons to whom said sales were made, and the time the same were made, and the particulars constituting the illegality thereof.
By the affidavit - attached to his motion, defendant showed to the court, as a'matter of fact, that he was ■entitled to keep and sell intoxicating liquors by virtue of his permit. Thereupon it became apparent that the proof ■of the keeping and sale of intoxicating liquors in the building would not, in itself, show that defendant was maintaining a nuisance. As a permit holder, he might maintain a nuisance in various ways, — as by keeping liquor for sale without requiring signed requests, as provided in Code, section 2394, or by selling or giving liquor to minors or intoxicated persons, or persons in the habit of becoming intoxicated, in violation of the provisions of Code, section 2403. Any illegal sale by him as a permit holder would render him liable to all the penalties of the prohibitory law. Code, section 2399. But we think that when it was made known to the court, in the method authorized by the section relating to motion for more specific statement, that the petition, so far as it alleged illegal sales, did not, under the circumstances, contain any allegation of fact which, if admitted, would .entitle the plaintiff to an injunction, then the lower court was justified in requiring that the allegations of the petition be made more specific. We see no reason why, when a permit holder is charged to have violated the law by making illegal sales, he is not entitled to know in what respect it is claimed that he has acted unlawfully, in order that he may join issue and make his defense. The action of the trial court in sustaining the motion for a more specific statement, so far as it related to allegations of illegal sales, was therefore correct.