Cameron v. Tucker

Given, J. 1 The motion is in the nature of a demurrer to the allegations of plaintiff’s petition and reply, and, for the purpose of the motion, we must take said allegations, in so far as they are well pleaded, to be true; in other words, if the plaintiff’s pleadings show him entitled to the relief asked, the motion should not . be sustained, even though those allegation are denied. On the face of the pleadings, we have this state of facts: The defendant Tucker is maintaining the place described for the sale and keep [214] ing for sale of intoxicating liquors, but whether or not lawfully depends upon whether he has failed to comply with said chapter 62, Acts Twenty-fifth General Assembly, in the respects alleged in the petition. If this issue should be found with the defendants, then they are not open to injunction; but, if otherwise, they may or may not be, according as effect is given to the injunction of October 1,1895. The contention presented in argument is whether, because of said matters alleged in the reply, we should hold that said injunction is not a bar to granting another injunction, as prayed by the plaintiff. In Dickinson v. Eichorn, 78 Iowa, 710, a case like this> it was held that a second injunction would not be granted when there was one in full force. It is said in that case: “The question for determination. is, can this second action be maintained, and another decree entered for precisely the same thing, — that is, for enjoining and abating the same nuisance which is already enjoined and ordered to be abated? It is to be observed that it is conceded that the former decree is in full force, and no reason is stated anywhere in the record, nor even suggested in argument, why it has not been enforced. If a showing were made that the decree was obtained by collusion with the defendant, for the purpose of allowing it to remain without enforcement, and the same is therefore a fraud upon the court, and intended as an evasion of the law, there might be some ground for maintaining this action; but we need not determine that question, because it is not presented in this record.” It is further stated: “But it is apparent that in this class of actions one valid injunction is as effective as a thousand would be. * * ® The plaintiff, as a citizen of the county, stands for and represents the public.” [214] Defendant Tucker is maintaining a place for the sale and keeping for sale of intoxicating liquors, and, if the allegations of the petition be true, he is doing so in [215] violation of the law. If the allegations' of the reply are true, it is manifest that the- obtaining of the injunction upon which defendant’s rely for protection was by fraud upon the court that granted it, and upon the public, and that it is not in fact effective in protecting the public against the alleged nuisance. Where such are the facts, surely, the public should not be deprived of the protection the law contemplates, nor violators of the law be permitted to shield themselves by such frauds. Lewis F. Nelson and Peter Holland are defendants in this action, because of their being sureties for defendant Tucker on said bond, and, as we understand the record, join in the answer and motion. They are not parties to the injunction granted October 1, 1895, but are sought to be enjoined in this action, together with the defendant Tucker. In Carter v. Steyer, 98 Iowa, 533, it was held that an injunction restraining the defendant from keeping intoxicating iiquors for sale on certain premises, and within the judicial district, did not bar a suit to enjoin the maintenance by him of a similar nuisance in the same disrict, — but on other premises owned by his co-defendant, against whom no injunction is in force. Applying this rule, plaintiff is entitled to an injunction against the defendants Nelson and Holland. Therefore the motion should have been overruled. We are of the opinion, however, that, because of said matters set up in the reply, the injunction of 1895 is not a bar to plaintiff’s right, upon establishing said facts, to have a perpetual injunction in this action against all the defendants. It follows from this conclusion that the judgment of the district court must be reversed.