Carter v. Bartel

Ladd, J. 1 That the O. & J. Michel Brewing Company ivas keeping intoxicating liquors for unlawful sale, through IBartel, in the-ir cold-storage building, situated on lots belonging to Portman, is fully established by the evidence. Possibly wholesale liquor venders may suffer'inconvenience in being prohibited from making sales of their commodities elsewhere than in a particular building, under fixed conditions. But such is the express provision of the statute. In taking orders at the various saloons of the city, delivering the beer in pursuance thereof, and there receiving payment, sales were made at these places, and not at the cold-storage building. Bartel v. Hobson, 107 Iowa, 644; Cameron v. Fellows, 109 Iowa, 534. [212] II. It appears from the evidence that in an action by James L. Cameron against C. & J. Michel, a co-partnership-•consisting of O.-Michel and J. Michel, and Frank Bartel, a decree of permanent ¡injunction was entered, November 27, 1S94, restraining them from the illegal sale of intoxicat [213] ing liquors on-tlxe premises in controversy or within the Thirteenth judicial district. Included in the decree ivas the-usual order of abatement. Bartel was misnamed “Barth’* in _ the decree, but' admits himself to be the person intended-Indeed, notwithstanding the misnomer, he has been punished for contempt thereunder. See Bartel v. Hobson, supra. Theevidence also shows the C. & J. Michel Brewing Company to be a co-partnership, and the firm indentical with and composed of the same persons as C. & J. Michel. As to these parties, then, the decree of 1894 was as effective as the one prayed for could be. Dickinson v. Eichorn, 78 Iowa, 710 (6 L. R. A. 121); Steyer v. McCauley, 102 Iowa, 105. Carter v. Steyer, 93 Iowa, 533, differs from Briscase in that there the premises involved Avere not the sarasas in the former action. The question raised in the authorities relied on by the appellee Avas whether Bie persons accused, though not particularly named, Avere included in the language of the decrees. Here the defendants mentioned have not only pleaded, but proven, that they were parties thereto' and designated as such. The plea that these defendants had-already been enjoined, precisely as prayed, should have been sustained. 3 III. Portman, tlic OAvner of the lots, was not a party to the former action, and as, bv section 23S4 of the Code, the ground, in such a case; is declared a nuisance, the decree Avas rightly entered against him and Breland. Code, section 2405; Gray v. Stienes, 69 Iowa, 124. 4 IV. A fee of one hundred and twenty-five dollars Avas taxed in faA-or of the plaintiff’s attorney. .Section 2406, relating to trial in the district court, provides that, -in suits to enjoin nuisances, “if the plaintiff is successful in the-action, an attorney’s fee of t-Aventy-five dollars shall be taxed in his favor.” The laAv as it formerly stood required' the taxation of a reasonable fee of not less t-hani twenty-five dollars. Acts TAventy-first General Asseni [214] bly, chapter 66, section 1. In making this change, and prescribing a definite amount, the intent of fixing an arbitrary sum to be allowed is apparent. This statute must be construed with section 2429 o£ the Code, which reads: “In all actions in equity against persons charged with keeping a nuisance, and to abate the same, and all proceedings for a contempt for violating any injunction, temporary or permanent, issued or decreed therein, the court or judge before whom the same shall be heard and determined shall allow the attorney prosecuting such cause a reasonable sum for his services, and, in case a fine shall be assessed, he shall be allowed ten per cent, of the fine collected.” Effect may be given to both only by saying that the first names a minimum, fee, or by treating it as fixing a sum which shall.be regarded as reasonable under the last. As seen, the first specifically mentions the precise amount which shall be taxed, and, because of the-change already mentioned and the. peremptory language employed, we are of opinion the fee was intended to be limited. The words of each have proper application if section 2429 be held to refer to all such actions, and what shall be deemed reasonable compensation in a particular trial to be defined by section 2406. Such a construction gives effect to both statutes, which is essential when possible. See Rhode v. Bank, 52 Iowa, 375. Y. This action was begun before the Code was adopted, though tried and a decree entered thereafter, and it is said that, as section 51 of the Code provides that the rejDeal of a statute “shall not affect * * * any suit or proceeding had or commenced in any civil cause” before it takes effect, the assessment of an attorney’s fee is regulated by the act of the Twenty-first General Assembly. Such assessment relates solely to the remedy, however, and does not affect the suit or proceeding. Nor does it have any bearing on the relief sought or to be granted. YI. The fee allowed in the district court will be reduced to twenty-five dollars, and the plaintiff’s attorney [215] allowed the sum of twenty-five dollars for bis services as against Portman in this court. Tbe decree, as against Bartel and tbe C. & J. Michel Brewing Company, will be reversed, and affirmed as to Portman. Tbe latter and plaintiff: will eacb pay one-balf of' tbe costs in this and tbe district court.— Modified. Granger, C. J., not sitting.