Tibbetts v. Burster

76 Iowa 176 | Iowa | 1888

Robinson, J.

— On the twenty-ninth day of December, 1887, the plaintiff filed in the court below a petition in which he alleged that the defendant and one Stoevener were the owners of a certain lot and building described ; that they had established and were keeping and maintaining a place in said building for the manufacture and sale of intoxicating liquors as a beverage, in violation of law ; and that they were from day to day manufacturing and selling intoxicating liquors therein, contrary to law. The petition asked that the nuisance caused as aforesaid be abated ; that a temporary writ of injunction issue, and that the same be made permanent oh final hearing. ' On the ninth day of January, 1888, the cause came on for a hearing on notice on an application for a temporary injunction. The defendant .appeared, and asked that the hearing be postponed to a future day. Her request was granted, and the fourteenth day of the same month was fixed for further hearing. The plaintiff thereupon demanded a temporary injunction, but was refused. It is alleged that Stoevener filed a disclaimer of interest, and the case, as to him, was dismissed. On the day fixed for the further hearing,, defendant filed an answer as follows: “Denies that she is maintaining on keeping a place for the manufacture or sale of intoxicating liquor as a beverage; denies that she is now keeping and maintaining a nuisance to the great injury of plaintiff or any other citizen ; admits that she owns a brewery on the lot described in petition, but says the saméis not now in operation ; avers that she has a permit from the board of supervisors, said permit being dated January 10, 1888, to manufacture and sell beer for culi nary and mechanical purposes ; admits that she purposes to soon operate said brewery under and in compliance with said permit.” On the same day plaintiff filed a de murrer to the answer, the chief grounds of which were that the answer failed to deny that the allegations of the petition were true when it was filed, and that the fact that the defendant was not engaged in the business alleged at the time she filed her answer was not a defense to the action. Affidavits in support of the petition and affidavits in support of the answer were submitted on the application for a temporary injunction with the demurrer. At a subsequent date the temporary injunction was refused, and the demurrer was overruled. The plaintiff electing to stand on his application and pleadings, the petition was dismissed, at the cost of defendant.

I. It is insisted by appellant that the court erred in refusing a temporary injunction when he continued the hearing on the application therefor from the ninth to the fourteenth of January. Section 2, chapter 66, Acts Twenty-First General Assembly, provides that when it is 11 made to appear to the satisfaction of the court or judge, by evidence in the form of affidavits or otherwise, as the court or judge may order, that a nuisance actually exists or is being maintained, * * * a temporary injunction shall be issued, as a matter of course, without bond,” when the causéis continued at the instance of the defendant in an action of this kind. There is nothing in the record to indicate the ground upon which the court below refused the temporary injunction on the ninth day of January. The only papers on file at that time were the petition, and an affidavit which sustained it. It does not appear that other or further proof of the existence of the nuisance was required by the court. In the absence of any showing which contradicted the averments of the petition and affidavit, and in the absence of any order of the court in regard to evidence, it could not properly disregard the showing, but should have granted the injunction demanded.

II. The answer does not deny the allegations of the petition as applied to any time prior to the tenth day of January, when the permit was issued by the board of supervisors; therefore it must be taken, as admitted that on the twenty-ninth day of December, 1887, when the petition was filed, the’ defendant was maintaining a nuisance ; and there is no presumption that such illegal business was abandoned prior to the tenth day of the next month. This being true, the c ase falls within the rule announced in Halfman v. Spr een, 75 Iowa, 309, and the demurrer should have been sustained.

Reversed.