Seevers, Oh. J.
The petition states that plaintiff is a citizen and resident of Jolinsou county, and that the defendant has established, and is engaged at said county in using, keeping and maintaining, and is intending to use, keep and maintain, certain described premises, for the purpose of' unlawfully selling as a beverage thereon, and of keeping with intent to sell as a beverage thereon, certain intoxicating liquors, the sale of which, is prohibited by law, and that said defendant is. now *692engaged in unlawfully selling, and keeping with intent to sell, such intoxicating liquors upon said premises; thereby creating and continuing a public and common nuisance. The relief asked is that the nuisance be enjoined and abated. The defendant denied the allegations of the petition, and pleaded, in substance, that the statute relied on by the plaintiff is unconstitutional.
i. iNToxxcATiavg- liquors: nuisance: plaintiff!'** °£ proof!"8 a" I. It is insisted that no evidence was introduced to show that plaintiff is a citizen of Johnson county, and that, because tbe failure to establish such fact, the judgment is erroneous. It has been held, however, that a simple denial of the allegations of the petition does not put in issue the citizenship of the plaintiff. (Shear v. Green, ante, 688.)
constitutionality of statute. II. The evidence clearly shows that the defendant sold beer on the premises in question, and that he was engaged in the manufacture of beer, and that the brewery had been established on said premises several years prior to the passing of the statute under which this action was commenced. The evidence further shows that the brewery was worth, for the purposes for which it was erected, about $60,000, and that for any other purpose the brewery and real estate described in the petition is not worth more than $30,000. The constitutionality of this statute has recently been affirmed by the supreme court of the United States in Mugler v. State of Kansas and State of Kansas v. Ziebold, 8 Sup. Ct. Rep., 273, and is no longer a debatable question.
exclsseoi i!ceyonap-rao‘ peal: costs. III. Counsel for the appellants insist, as the petition fails ’to allege that the defendant is engaged in the manufacture of and no relief is asked in this respect, that the decree restraining the defendant from making beer is erroneous, for relief granted exceeds the relief asked, or the reason that the which the facts stated in the petition will justify. This position must be sustained. Counsel for the appellee so concede, bn f *693insist that no such question was raised below. We think this must be so, because no such relief was asked. But the ease is triable anew in this court, and it is our duty to render suck a judgment as the court below should have rendered. (Code § 319J.) Therefore the judgment of the circuit court should not be reversed, but must be modified; and the question is whether appellant is entitled to costs in this court. It has been frequently held that where the judgment is simply excessive, and no motion is made below to correct it, and it is modified in this court, the appellant is not entitled to costs. It seems to us this case is clearly within the rule established in such eases. Here, the relief granted exceeds the relief asked, and also exceeds the relief that could properly be granted under the prayer for general relief. Therefore it must be presumed that, if the attention of the court bad been called to the error in the judgment, it would have been promptly corrected. Therefore it was unnecessary to bring the case here to obtain all that appellant is entitled to, and he is not entitled to costs in this court. The judgment of tbe circuit court is modified and
Affirmed.