Shear v. Green

Mar 6, 1888

Reporters:: ,
Before:: Robinson

Robinson, J.

*689i. xotoxicatmiisauoe;18’ citizenship of plaintiff: pleading and prooi. *688I. The petition alleges that plaintiff is a *689citizen of Chickasaw county, Iowa. The answer of appellants is a general denial. It is objected by appellants that there is no evidence that plaint- . . , . iff is a citizen oí the county named. It is true ^ , that there is no evidence oí ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that fact, but the general denial does not put it in issue. The plaintiff sues in a representative capacity, and it is sufficient for him to aver the fact which shows his representative character, as he has done. If appellants desired to controvert this, they should have pleaded the facts upon which they rely. (Code §§ 2716, 2717; Littleton v. Fritz, 65 Iowa, 488; Littleton v. Harris, ante, 272.)

sales pre- ’ sumed to be illegal. II. The cause was submitted upon the pleadings and an agreed statement of facts. It is claimed by appellants that there is nothing in the stipulation as to facts which shows that the sales complained of were illegal. It is shown that they were actual sales ®f whisky and beer, during the time and in the building in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍controversy. Proof of actual saléis presumptive evidence of illegal sale. (Section 8, Chap. 66, Acts Twenty-first General Assembly.) But it is insisted by appellants that this “is not an action, prosecution or proceeding prohibiting the alleged sale;” and hence that the provisions of law referred to do not apply to this case, so far as it relates to the- abatement of a nuisance. “We think the meaning of that section, so far as it is material to this case, is that, in all actions, prosecutions and proceedings under the laws of this state which prohibit the manufacture and sale of intoxicating liquors, proof of actual sale shall be presumptive evidence of illegal sale. The words, “ prohibiting the illegal * * * sale,” etc., refer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to “ laws,” and not to “ actions, prosecutions and proceedings.” Hence we conclude that the burden of proving that the sales admitted to have been made were legal is upon the appellants. This they have failed to do.

*690parties defendant : partners. *689III. The agreed statement of facts shows that defendant *690Joint Green and one McNeal were partners in carrying on businesss of which complaint is made, and that defendant, John Lewis, was a clerk of this partnership, engaged in selling the goods of the firm for the partners. Neither the partnership nor McNeal is made a party to this proceeding. Appellants object that the parties necessary to a determination of the questions involved, and to the giving of the relief demanded, are not before the court. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The objection seems to us to be well taken, so far as it relates to the disposition of the liquors and other property involved. All persons interested in this property as owners are entitled to be heard in defense of their interests, before the property can be destroyed or sold. An order for the destruction of J ohn Green’s interest in the property would be of no force so long as the interests of McNeal must be preserved. An attempt to enforce the judgment of the district court, so far as it relates to the property, might cause injustice to be done, and lead to vexations and unnecessary litigation. As bearing on this question, see Code §§ 2551-2553; Fowler v. Doyle, 16 Iowa, 534; Litchfield v. County of Polk, 18 Id., 70; Flanders ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. McClanahan, 21 Id., 486. The admitted facts fully justified the judgment of the district court as to appellants, and .their interest in the property in question; but, before that judgment is enforced as to the property, McNeal should be made a party to this proceeding, and given an opportunity to be heard.

This cause is remanded for further proceedings not inconsistent with this opinion.

Reversed.