Newcomer v. Tucker

Rothbock, J. The decree enjoining Joseph Lamm from maintaining the nuisance was entered in the district court in the month of February, 1887, and said decree was made perpetual on the seventh day of [487] April, in the same year. That part of the decree material to the.present inquiry was as follows: “That a temporary injunction issue against the said Joseph Lamm, enjoining and restraining the said Joe Lamm from selling intoxicating liquors unlawfully on the following described premises, to wit: A certain building or buildings situated upon lot eight, of block two, of Decorah, in Winneshiek county, Iowa,, and restraining the said Joe Lamm from using and occupying said above described premises, and the buildings thereon, for the purpose of keeping, selling, giving away, or storing therein or on said premises, any intoxicating liquors in violation of law.” This proceeding in contempt was commenced in September, 1891. It appears from the record that Tucker, the defendant herein, was a lessee of the premises, and in possession thereof as the tenant of Lamm; but it does not appear that he had any knowledge of the injunction. The case appears to be in all respects like Buhlman v. Humphrey, 86 Iowa, 597, where it was held, that a subsequent purchaser of the premises, or his lessee, was not liable for the violation of the injunction, because he was not within the terms of the decree. In that case counsel for the attachment for contempt insisted that the ease of Silvers v. Traverse, 82 Iowa, 52, was authority for sustaining the proceedings in contempt. But this position was not sustained by this court, because in the last named case the decree enjoined “all persons from using or occupying the premises for the unlawful keeping or traffic in intoxicating liquors.” The cases were therefore held to be distinguishable. We think that the district court rightly held that the defendant in that case was not within the terms of the decree. It is due to the learned district judge who decided this case to say that the case of Silvers v. Traverse, supra, was decided by this court before the case at bar [488] was tried in the court below, and that there is language used in the opinion in that case, not necessary to its determination, which might seem to authorize the conclusion reached by the district court in this case. The case of Buhlman v. Humphrey, supra, was decided by this court since this case was tried and decided in the district court. The writ of certiorari will be sustained, and the decree of the district court is reversed.