79 Iowa 126 | Iowa | 1890
The admissions made by the defendant in the original answer in this case establish every fact that it is incumbent upon the plaintiff to prove, and, in the' absence of any further testimony, entitles him to a decree as prayed. In that answer the defendant admits that he leased the premises described in the plaintiff’s petition in April, 1870, for the sole purpose of selling beer and ale therein, and prepared the same for carrying on that business, and that he has carried on that business in said premises ever since, to-wit, the sale of “beer at retail at the place aforesaid.” The place aforesaid is described as “in a brick building at numbers 154 and 162 Sixth street, Dubuque, Iowa. The defendant pleads in abatement of this action the pend-ency of the former. To maintain this plea the burden is upon him to show that both actions relate to the same place. The place described in this is, “ in a brick building at numbers 154 and 162 Sixth street, Dubuque, Iowa,” while the place described in the other action is “number 168 Sixth street, Dubuque, Iowa, between Main and Locust streets, south side of Sixth street.” There is nothing in these descriptions to show that they refer to the same place, further than that both are described as being on Sixth street, Dubuque, Iowa. The only other testimony is that of John Pier. He testifies about the defendant’s place in Mrs. Sullivan’s building, the place on the corner of the alley between Main and Locust. The only identification that he gives of the place of which he is speaking is that he understands that Mrs. Sullivan owns the building; and, in answer to the question, “How many places or rooms does Mr. Hollenfeltz occupy on the corner of the alley there, between Main and Locust?” goes on to state with respect to the rooms. His testimony, as set out, does not even show that the place of which he is speaking is on Sixth street, nor is it designated by number, or any other description. Every word of his testimony may be strictly true, and yet the defendant be keeping other places of business at the numbers given in the two
Taking the testimony as it is before us, and we have the defendant admitting upon his oath, in the answer in this case, that he kept the place described in the petition as a saloon, to-wit, “in a brick building at numbers 154 and 162 Sixth street,” and, in the answer filed in the former suit, that he kept a saloon at “ number 168 Sixth street;” and, by Pier’s testimony, that he kept a saloon in a building, which he understood Mrs. Sullivan owned, on the corner of the alley between Main and Locust. It was a possible thing for the defendant to be carrying on the saloon business at three different places; and, while such may not have been the fact, yet, certainly, it so appears, from this testimony. We think the defendant failed to sustain this plea in abatement by showing that the two actions relate to the same place; and, therefore, the judgment of the district court is reversed, and a decree granting an injunction as prayed, and for costs, including an attorney’s fee of seventy-five dollars, will be entered in this court.
Reversed.