In re McKibbins

Opinion by Rice, P. J., The petition in the present case was that the court “ grant him a license, a transfer from one house to another,” etc. It was indorsed “ petition and bond of Henry W. McKibbins for transfer of tavern license,” and set forth “ all the facts necessary under existing laws for original applications for liquor licenses.” If the statute were silent on the subject it might well be argued that the applicant should have averred in his petition the grounds upon winch the transfer was asked for, and it may be remarked that even in the absence- of express statutory requirement it would be good practice to do so. Moreover, we have no doubt that the court may, in its discretion, require it. This, however, is not the question. The question is, whether such averment in the petition is absolutely essential to a valid order transferring the license. The answer to this question is contained in' the statute, which provides: “ Any transfer of license .... may be made during the regular term of court, or in chambers during vacation, when the applicant for said transfer shall have presented to the court a petition setting forth all the facts necessary under existing laws for original applications for liquor licenses.” When, therefore, the petition for a transfer setting forth all that the statute requires has been filed the requisite length of time, the court has jurisdiction to transfer the license after due hearing upon satisfactory proof of the essential facts. The objection, that the court refused-to consider the remonstrance filed by the appellant is not sustained by the record taken as a whole and fairly construed. The objection to the [424] transfer, stated in Ms own language, was: “ That affiant has never notified McKibbins to quit the premises, but on the other hand, has, at all times, and is at the present time, desirous that Mr. McKibbins continue to occupy the same. That he is ready and willing to extend the lease for said house with Mr. McKibbins for one year from June 23, 1899, upon the present terms.” As to this objection the court said that it appeared “ by the evidence in the case, that the owner of the building now licensed had refused to renew the lease of the building to the licensee until the licensee had bought a building, and taken steps to have his license transferred to the same.” If the facts were as stated in the order a case was made out which authorized the court to transfer the license. One of the cases where the jurisdiction may be exercised is, where the owner of the building occupied by the licensee refuses to extend or renew a lease for the same. After a definite refusal of the landlord to extend or renew the lease, and, acting on the faith of that, the licensee has bought a suitable building and taken steps for the transfer of the license, the owner cannot oust the jurisdiction of the court by an offer made on the hearing to renew the lease upon the same terms. We are justified in assuming that it was tins offer or proposition contained in the remonstrance that the court referred to in that part of the order quoted in the fourth assignment; for it is very evident that the court did consider the objections raised by the appellant, and held them to be insufficient to prevent the transfer in view of the facts disclosed by the evidence. In this there was no error wlfich ■justifies reversal. Judgment affirmed.