83 Iowa 134 | Iowa | 1891
Tbe original notice in tbis case was served July 8, 1889, and gave notice tbat tbe petition would be filed on or before tbe twenty-nintb of August, 1889. Tbe answer was filed September 16., 1889, and on tbe twentieth of November, after, notice was given of an application for a temporary writ of injunction, wbicb was issued on tbe fifth of December, 1889. It was after tbe issuance of tbe writ tbat Koestner commenced bis suit to revoke tbe lease and obtain possession of bis property,. and this fact is urged as showing bad faith and unnecessary delay. But tbe facts upon wbicb tbe adjudication was against Koestner were tbe same during all tbe time, and we' must assume tbat with like facts a like judgment would have been entered. It thus appears tbat during all tbe time after be bad knowledge of tbe use of tbe lot be was without tbe means to prevent it. Tbe effect of tbe delay complained of was not to continue or encourage tbe nuisance. Under sucb a state of facts, it is clear to. us tbat Koestner should not be made liable for tbe penalties of an injunction against tbe continuance of tbe nuisance by another.
Tbe lot and building were by tbe district court found to be a place where intoxicating liquors were kept and sold contrary to law, and hence it was a nuisance, and should, by tbe judgment of tbe court, have been abated, notwithstanding who may have been tbe owners. Code, sec. 1543. Tbe court found tbat John Linder was tbe person occupying tbe premises and maintaining tbe nuisance. It enjoined bim from further maintain
With the modification indicated in the opinion, to be entered in this court, the judgment will be affirmed.