Farley v. O'Malley

77 Iowa 531 | Iowa | 1889

Given, C. J.

1. intoxicating Sf i8°8os,:chap-s cation top11’ pending suits. I. This action was instituted under the provisions of chapter 143, Acts of Twentieth General Assembly. Before trial, chapter 66, Laws of Twenty-first General Assembly, took effect, wherein it is provided that ‘ ‘ evidence of the general reputation of the place designated in the petition shall be admissible for the purpose of proving the existence of such nuisance, and, if successful in the action, the plaintiff shall be entitled to an attorney’s fee of not less than twenty-five dollars, to be taxed and collected as costs against the defendant.”

It is claimed in behalf of appellant that these provisions do not apply to this case, because it was pending at the time of the passage of the act. The opinions of this court as announced in McLane v. Bonn, 70 Iowa, 752, and Drake v. Jordan, 73 Iowa, 707, are a sufficient answer to this position. We see no reason for modifying or changing those opinions; hence there was no error in admitting evidence as to the reputation of the place nor as to the value of the attorney’s services.

2. admissions m answer. II. The third paragraph of the defendant’s answer is an independent and distinct admission of material matters in the petition, and was properly admitted m evidence. JNo preiudice could *- J result from admitting it, as the defendant introduced the other part of the answer.

3. Liquob nuisance: attorney’s of®s¿a¿p™* late courts. III. As already stated, there was no error in admitting testimony as to the amount of attorney’s fee. Chapter 66, Acts of Twenty-first General Assembly, being applicable, the plaintiff was entities to such attorney’s fees as might pe reasonable for the service necessarily rendered in the case, in whatever court not less than twenty-five dollars.

4. T enterüfvacation. IV. Section 183, Code, provides, ‘ ‘ with consent of parties, action * * * may be taken under advisement bv the judges, decided and entered on recOTd in vacation, ór at the next term.” The consent of the parties was that decision was to be made in vacation, as of the last day of the October term. We fail to see wherein the defendant could be prejudiced by the judge withholding the decision for a few days beyond the vacation, and conclude that if it were error to do so, it was without prejudice.

5. nuisauce: refusing V. The plaintiff assigns as error the refusal of the court to allow a permanent injunction. The findings of the court as sho wn in the decree are fully sustained by the evidence, and warranted the granting of a permanent in j unction. W e see no reason why the permanent injunction was not granted.

same as numVI. The plaintiff also assigns as error the refusal of the court to allow more than one hundred dollars attorney’s fee. The only testimony as to the yalue of the attorney’s service rendered was by the attorney himself, who stated the services to be worth three hundred and fifty dollars, which, in view of the various courts into which the case has been carried, we think is quite reasonable.

The decree of the district court is affirmed on the defendant’s appeal, and reversed on the plaintiff’s appeal, and decree will be entered in this court granting permanent injunction as prayed, and for costs, including an attorney’s fee of three hundred and fifty dollars. On defendant’s appeal the case is affirmed, and upon plaintiff’s appeal is Reversed.