151 Iowa 264 | Iowa | 1911
This appeal presents the question whether the trial court erred in holding that under a consent decree agreed to by counsel for all the defendants except Charles M. Forney, who had filed an answer denying knowledge of illegal sales on the premises, the costs of the action could be made a lien upon such premises in the absence of any evidence showing knowledge on the part of said defendant Forney.
Now it appears in the record that although defendant Korney, the owner' of an undivided interest in the described property, the owner of the other undivided interest not being a party to this action, -denied in his answer any knowledge of illegal use of the premises. for selling or keeping for sale intoxicating liquors thereon in violation of law, there was no evidence whatever presented to the court tending to show such knowledge on his part, and that his counsel did not consent to the decree by which the costs were made a lien upon the premises. Unless, therefore, some other facts or circumstances appear in the rec-; ord justifying the action of the court in decreeing that the costs be a lien upon -the premises, the decree is in that respect erroneous.
Some reference is made in argument to the case of Denmead v. Parker, 145 Iowa, 581, a certiorari proceeding in this court instituted by this appellant, Charles M. Korney, and his co-owner, C. IT. Korney, who was not a party defendant, in which action it was held that as to C. II. Korney the decree was entered without authority, with the result that the judgment was declared not to be a lien on his interest. In that case it was held that as 0. M. Korney was a party, he could not in certiorari have the
The case is quite different from that of Ottumwa Savings Bank v. City of Ottumwa, 95 Iowa, 176, the only case in equity cited in support of appellee’s contention. In that case this court refused to decide a new question not presented to the lower court and as to which no issue had been made.
In the case before us the court by its final decree erroneously decided the very issue which was presented under Forney’s answer. There was no occasion for a motion for a new trial in order to raise the question now presented on appeal (Code, section 4106), and appellant may now properly insist that on this appeal the decree, so far as it declares a lien on his property, be reversed. As there was no trial of the issue raised by his answer, the case will be remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.