158 Iowa 200 | Iowa | 1913
The petition alleged that defendant owned certain premises in Liddendale, and therein kept, with intent to sell as a beverage in violation of law, intoxicating liquors, and prayed that defendant be enjoined from so maintaining said premises as a nuisance. The first division of the answer was a general denial, and the second admitted defendant was operating a saloon on the premises in question, but specifically alleged the performance of the conditions precedent exacted by section 2448 of the Code as essential to the bar of the mulct law. Appellant assumed the burden of proving performance of these, but insists that, in the absence of other .allegation in the petition and of any reply, other matters pertaining to the operation of the saloon might not be inquired into. Whether this is so need not be determined, for we reach the conclusion on the merits that the court erred in entering the decree.
IV. The name of Brown was listed with the county auditor as an employee about the saloon in December, 1911, but it is contended that this was not done before he began work as a porter. Rohrbeck testified that about December 20th, and after Brown began work, he examined the list on the file with the county auditor, and that his name was not then on the list. The witness on cross-examination said he examined the list because he was assessor, and later that his official duties had nothing to do with it. He had been an applicant for permission by the town council to operate the saloon when defendant was granted this, and admitted that, should anything happen to defendant, he was planning to run the saloon himself if he could “get a chance.” The, defendant swore that Brown’s name was listed before he began work, but could not recollect the date, and the auditor’s record did not show this. Both were interested witnesses with nothing indicating the one to be of greater credibility than the other save that defendant, in view of his situation, would be the more likely to know whether Brown began work before his name was listed. We are inclined to the conclusion that the alleged omission to put the name on the list for a few days was not established by a preponderance of the evidence. It follows that the petition to enjoin should have been dismissed. —Reversed.