Steyer v. McCauley

102 Iowa 105 | Iowa | 1897

Kinne, C. J.

This case presents the question whether, after an injunction has been issued restraining one from continuing a liquor nuisance, and after proceedings thereunder have been commenced against him for contempt for violating said injunction, which proceedings are still pending and undisposed of, another citizen of the county may maintain another suit against the same and .other persons as defendants for a like offense committed in and upon the same premises, and obtain another injunction. It was held in Dickinson v. Eichorn, 78 Iowa, 710 (43 N. W. Rep. 620), that a decree for an injunction and the abatement of such a nuisance obtained by one citizen of a county, although not enforced, was a bar to a second suit for the same purpose by another citizen for the abatement of the same nuisance, in the absence of a showing that the former decree was obtained by collusion, with the intent to use it to defeat the purposes of the law. So far at least as the defendant Emil Rosenthal is concerned, that case seems to us decisive of this appeal.

It appears that in November, 1891, at the suit of one Camerop., Emil Rosenthal was perpetually enjoined from maintaining the same kind of a nuisance at the same place; that in January, 1895, said Cameron instituted proceedings against Emil Rosenthal for a violation of said injunction, which proceedings are still pending and undetermined. There is nothing in this record to show why this contempt case has not been heard. There is no suggestion in the record of any bad faith or collusion in obtaining the original injunction. For some reason, which does not clearly appear, no order of abatement was entered in that suit. The facts in this case, so far as the defendant Emil Rosenthal is concerned, are identical with those in the cited case, except in that case the same person was attorney for the plaintiff in both actions, and the decree in that case ordered an abatement of the nuisance. In that ease no proceedings had been instituted against the defendants for contempt. We do not regard the fact that the attorney appearing in this case is not the same person who appeared in the original case as of confaollimg importance, especially in the absence of anything ¡showing any reason why the contempt proceedings has not been heard, and there being no charge or evidence of bad faith on the' part of the party or attorney instituting the original and contempt proceedings. Only about six months had intervened between the time the proceedings for contempt were begun and the bringing of this action, and we can hot say, in the absence of other evidence, that there was not good cause for this delay, or that said proceedings were not being prosecuted in good faith. The case of Carter v. Steyer, 93 Iowa, 533 (61 N. W. Rep. 956), wherein the right to a second inj unction is upheld, is, in its controlling facts, essentially different. from the case at bar.

As to the defendant Bertha Rosenthal, there is no evidence showing that she was in any way concerned in running or operating the saloon, an<J no reason appears why she should have been made a party defendant. As to McCauley, he appears to have been a bartender for the defendant Emil Rosenthal, and as such was his agent, and is clearly embraced within the decree rendered in the original case in which an injunction was rendered, Silvers v. Traverse, 82 Iowa, 55 (47 N. W. Rep. 888); Buhlman v. Humphrey, 86 Iowa, 597 (53 N. W. Rep. 318).

We think the reasoning of the Dickinson Case is conclusive as to the questions here presented, and we need not further consider them. The decree of the district court is affirmed.