154 Iowa 640 | Iowa | 1912
The petition as finally amended charged the defendants with maintaining a building or place owned by Willett and occupied by Maas, who kept therein intoxicating liquors with intent to sell the same in violation of law, and upon these allegations asked that an injunction issue restraining said defendants ’ from further illegal acts of that nature and for other relief. To this petition defendants filed a motion asking that plaintiff he required to state specifically: (1) Whether plaintiff’s allegation of illegal acts on part of the defendants is grounded on acts or omissions of the defendants depriving them of the benefit of the mulct statute, so called, and, if so, to specify the particular act or omission relied upon. (2) Whether he claims that the bar of the mulct statute is not available to the defendants, and if so, to specify the particular provision of the statute which has been violated or not complied with by them. • In support of this motion, an affidavit was submitted alleging that all and singular of the conditions required by law to render the bar of the mulpt statute available to the defendants have been duly observed and performed, and that the more specific statement of plaintiff’s cause of action asked for in said motion is necessary to enable them to prepare their defense. This motion was overruled, and error is assigned thereon. Thereupon an answer was filed denying the allegations of the petition and pleading the bar of the mulct statute, the conditions and requirements of which they aver have been fully complied with. Thereafter, and after the action had been pending several weeks, and but a short time before it was called
On the trial plaintiff offered evidence tending to show that Willett formerly operated a saloon in this building or in another on the same lot; that thereafter Maas was in charge of the business; that Willett lived near by and was frequently in and about the saloon; that intoxicated persons were seen in and about the place; that drinks were there sold or furnished to persons in the habit of becoming intoxicated; and that on occasions there was more or less of betting going on in and about the saloon. There was also evidence to the effect that the saloon was generally reputed to be a place where liquors were sold in violation of law. ©n part of the defendant, witnesses testified that in their opinion the saloon bore a good reputation in the community, and that the persons named as being in the habit of becoming intoxicated were not drunkards. The defendant Maas in his own behalf testified that he had closed the saloon and quit the business at 9:55 p. m. of the previous Saturday and surrendered to the town council the resolution of consent held by him and had removed from the building all liquors and saloon furniture and fixtures. He also denied having violated the law in any respect and affirmed his purpose at all times to comply with its requirements. His denials, or some of them, were supported by other witnesses. It was also stipulated between the parties that
But if, we understand counsel, the bprden of appellants’ complaint, at this point, is that, the charge being limited to the keeping of intoxicating liquors with intent to sell the same unlawfully, such intent cannot rightfully be established by proof of unlawful. sales or other unlawful acts or omissions not specifically alleged. But this seems to us to be no more than a restatement of the same objection in another form of words. To require plaintiff to plead other facts or acts from which the keeping with intent to sell may 'be presumed or inferred, is to overturn the fundamental rule that the pleader is not required, and in truth ought not to be permitted, to plead his evidence. The ultimate fact charged by the plaintiff is the keeping of liquors with intent to sell in violation of law. The fact, if it be a fact, that defendants did, in the building or place mentioned, sell and deliver intoxicating liquors to others
The attitude of the appellants herein may be best indicated by the following excerpt from the argument of counsel: “Can a person prove more, under the allegation in his petition that he intends to violate the law, than he can when he had an allegation in the petition that the law has been violated? The absurdity of the plaintiff’s position in this case must be apparent to the court.” This inquiry makes clear that counsel confuse allegation of ultimate fact with allegation of matters by which that ultimate fact may be proved. What is the ultimate substantive fact upon which the plaintiff grounds his petition ? It is not that defendant sold liquors to drunkards, but that they kept liquors there with intent to sell the same unlawfully. The keeping and the intent, as we have already said, were the essential facts to be established to entitle plaintiff to- a decree; but such intent he was entitled to prove by evidence of facts from which the intent may reasonably be inferred, and, in order so to -do, he was not required to plead such evidentiary facts, nor could the court properly require him to so plead.
Whether the testimony showing, that certain election bets had been made in the saloon constitutes evidence of gambling, which the law prohibits, we need not at this time discuss or decide. We are satisfied from the record that the trial court was fully warranted in finding that in other respects the saloon had been so conducted that the bar of the mulct statute was no longer available to the defendants. We shall not prolong this opinion to further consider the testimony. It has already been indicated in our statement of the case, and we think the preponderance of evidence upon these issues is clearly 'with the plaintiff.
The decree appealed from is affirmed.