McVey v. Manatt

80 Iowa 132 | Iowa | 1890

Rothrook, C. J.

i. Intoxicating iíwfui ¿aíes: on“easedlien inowfllge nf lessor — I. The unlawful sales of liquor by Nelk to the plaintiff’s husband are alleged to have keen made on the said premises in the years 1881, 1882 and 1883. It appears that durin8 khe years named Nelk was authorized ky a permit or license from the town of Brooklyn to keep a beer saloon. The statute then authorized the sale of beer, but the sale of beer to minors, to intoxicated persons, or habitual drunkards was unlawful, whether the saloon-keeper had a license or not, and a judgment rendered against the keeper of the saloon was a lien on the real estate where the liquor was sold, if the unlawful sales were with the knowledge and consent of_ the owner. Code, secs. 1557, 1558. It is claimed by counsel for appellant that the evidence does not show that intoxicating liquors were sold to plaintiff’s husband contrary to law, with the.knowledge and consent of the defendant.

We have carefully examined the evidence on this question, and our conclusion is that the evidence shows, without much doubt, that the plaintiff ’ s husband was a notorious and habitual drunkard. His drunkenness was such as to be observed by all his acquaintances. He was habitually drunk on the streets, and in Nelk’s saloon, and at all other places where he was found. The defendant lived near the saloon, and sometimes visited it, and it is impossible to believe, from the testimony of the witnesses, that he did not know of the habits or McYey, and of the fact that Nelk was selling intoxicating liquor to him. If he knew it, and made no objection thereto, it is fair to infer that he consented that his property might be used as a place for the unlawful sale of intoxicating liquor.

g _. en_ í&nfevidence as to amount, II. It having been determined by this court in Buckham v. Grape, 65 Iowa, 535, that the judgment against the saloon-keeper is not evidence of the amount to which the property of the landlord of a saloon-keeper should be subjected, the plaintiff in this action set forth the facts fully in the same manner as in the original action, and the original petition against Nelk was exhibited with the petition in this case, and made a part of it, and the proof abundantly shows that the plaintiff suffered damages in the full amount of the original judgment. If we were to be called upon to fix the amount of damages from the evidence, we would find the same to be more than the judgment.

It is claimed by counsel for appellant that the issues in the two cases were not the same.; that in the original action a charge was made for violence and assaults made upon the plaintiff by her husband when he was in a state of intoxication, and that there was no such evidence introduced 'on the trial in this case. We do not think it is essential to show by evidence all of the ingredients which went to make up the former judgment. It is sufficient if it is made to appear that the judgment was justified by the facts, whether they embrace all that was proved upon the former trial or not.

' sepárate”ae1 ' III. It is urged that this action will not lie, because the saloon-keeper and his landlord should have been joined in the same action. It is true that this court held in Loan v. Hiney, 53 Iowa, 89, that a joint action might be maintained against both, and that it was error to deny to the landlord a trial by jury, and then to establish the lien of the judgment under an equitable issue in the same action. But this court never has determined that an action may not be brought against the saloon-keeper, and prosecuted to judgment, and another action against the landlord to make the judgment a lien on the premises. On the contrary, while the question is not directly determined, the right to maintain two actions is recognized in La France v. Krayer, 42 Iowa, 143, and in Buckham v. Grape, 65 Iowa, 535. We think that it ought not to be held that a subsequent action against the landlord may not be maintained.

' ioím ófaó IY. It is next claimed that the petition should have been dismissed because there was no equitable issue for trial; that the action is solely cognizable at law. It is enough to say of this question that the petition purports to present an equitable claim. The defendant, by his answer, recognizes the fact that the action is in equity, and asks a decree that the judgment of the plaintiff shall not be held to be a lien on any interest or lien the defendant may have on the building which was sold on execution against Nelk. The cause was set down for trial on depositions, and was so tried. After all this acquiescence in the form of the action, the defendant ought not now to be heard to complain that the cause was tried in the wrong forum. O’Brien v. Putney, 55 Iowa, 292; Tugel v. Tugel, 38 Iowa, 349; Van Orman v. Merrill, 27 Iowa, 476.

5 _._. feasors?satisfaetion. Y. It is said that the saloon-keeper and his landlord are joint tort-feasors, and that, as the plaintiff prosecuted her action to judgment, and collected a part of it by execution, she has no rjght to maintain another action against the landlord. It appears to us that the parties are not joint - wrongdoers, as claimed by counsel. There is no liability of the landlord other than the subjection of his property to the payment of the judgment. Besides, it is a fundamental principle of the law that separate actions may be maintained against joint wrongdoers, but that one satisfaction shall bar further proceedings. There has been no satisfaction in the former action. A partial payment is no satisfaction.

___. fudgmmit for costs. VI. The court rendered a personal judgment against the defendant for the costs of this action. It is claimed the law does not authorize a personal judgment. This is true, so far as the damages are involved. But the costs are no part of the damages. If the defendant had not resisted the action, the costs would not have accrued, and, under section 2933 of the Code, “costs shall be recovered by the successful against the losing party.” The decree of the district court will be Affirmed.