Shear v. Brinkman

72 Iowa 698 | Iowa | 1887

Seevers, J.

It sufficiently appears that the building in which it is claimed intoxicating liquors were sold and kept for sale, thereby causing a nuisance, which it is sought in this action to enjoin, belonged to Josephine Sieh, and it was leased to the defendant Brinkman, who at one time sold intoxicating liquors therein. Mrs. Sieh, being informed that intoxicating liquors were being sold in the building, caused Brinkman to be notified that he must not sell any liquors in such building, and he ceased to do so prior to the service on him of the notice of the pendency of this action. Certain new leases were thereupon entered into; but whether thereunder Brinkman entered or continued in possession is uncertain. Conceding, however, that he did, there is no evidence' tending to show any sales of liquor were made, or that it was kept for sale on' the premises, after the execution of the new leases, or after Brinkman ceased to sell such liquors as above stated. The leases were introduced in evidence, but they are not contained in the abstract. All the evidence, therefore, is not before us, and it is difficult to say that the court erred in refusing a temporaiy injunction, it appears by affidavit that the defendants, or some of them, took possession of the leases, and refused to furnish them to counsel for the plaintiff. Conceding this to be so, it is immaterial. "When a trial anew is desired in this court, it is'essential that all the evidence introduced in the district court should be set out in the abstract; and upon proper application made to the court, it must be assumed that such evidence in all cases can be procured or supplied. Loomis v. McKenzie, 48 Iowa, 416.

If, however, it be conceded that the leases are immaterial, then the question is whether the court erred in refusing a temporary injunction, and this depends on the further question whether there was an existing nuisance at the time the action was commenced, or whether, conceding that one had existed, it had been voluntarily and. in good faith abated. Counsel for the appellant cites and relies on Judge v. Kribs, 71 Iowa, 183; but we think there is a material difference between that case and this. In this case, the owner of the building, when informed of the nuisance, took steps to have it abated; and this in fact was done prior to the commencement of this action. There is nothing tending to show that this was not done in good faith. Therefore it seems to us an injunction should not be granted against the owner of the property, who appeal’s to have acted in good faith and with a desire to obey the law. In the cited case, it fairly appears that the defendant was not acting in good faith, and, besides this, there is no pretense that the nuisance was abated until after the commencement of the action to abate or enjoin. ■The judgment of the district court must be

AFFIRMED.