Denmead v. Parker

Ladd, J. The plaintiff in each of the first three suits had no interest in or title to the premises on wpich the alleged liquor nuisances are said to. have been -maintained. For this reason he can not be heard to complain of the portions of the several decrees which establish the judgments for costs as liens on the premises. But, in the fourth suit, the plaintiffs, C. 1VI. and C. H. Forney are owners of the premises and are entitled to relief, if the decree in this respect is illegal and the procedure adopted is available. It is conceded that plaintiff in the first three suits as well as plaintiffs in the last may challenge the validity of the decrees in all other respects. See Hemmer v. Bonson, 139 Iowa, 210. I. Intoxicating liquors: injunction: decree. I. Each decree perpetually enjoined the defendants consenting thereto “from keeping, carrying on or maintaining a nuisance upon the premises hereinafter described, b7 keeping thereon or therein any intoxieating liquors with intent unlawfully to sell the same, or by selling the same thereon or therein contrary to law, or permitting the same to be used or kept with intent to unlawfully sell, or selling the same thereon or therein contrary to law, and this injunction must be strictly obeyed and respected within the limits of the seventeenth judicial district of Iowa, the defendants above named being enjoined from keeping intoxicating liquors with intent to sell, or selling the same within said district contrary to law.” The language is criticised in that only the unlawful sale or keeping for sale is enjoined; the plaintiffs asserting that the district court was powerless to enter a decree that enjoined defendants “in any manner except perpetually against the sale or keeping for sale of intoxicating liquor in any manner of form within the seventeenth judicial district.” Upon the adjudication that [585] defendants therein were maintaining a nuisance, any possible sale or keeping for sale of intoxicating liquors by them within five years under the mulct law or two years as registered pharmacists would be unlawful, and so the decree as entered was as conclusive within the periods named as though no limitation on the character of the selling or keeping for sale had been prescribed. After the lapse of two years such a decree does not prevent the granting of a permit to sell .or keep for sale as a registered pharmacist (section 2387, Code), nor after five years is it an obstacle to the operation of a saloon under the mulct law (chapter 142, Acts 33d General Assembly). See Rink v. Bollinger, 145 Iowa, 581. Moreover, the statute authorizes an injiinction against the maintenance of a nuisance (section 2405, Code), and the lawful sale or keeping for sale never constitutes a nuisance. Landt v. Remley, 113 Iowa, 555. In Hemmer v. Bonson, 139 Iowa, 210, relied on by plaintiffs, this court declared the district court without authority to enter a decree authorizing the continuance of a liquor nuisance, saying that “if the defendants were selling liquor in violation of law, as charged by the plaintiff, there was but one thing which the court was at liberty to do, and that was to enjoin such parties absolutely from the further prosecution of the business in any manner or form. If they were not maintaining a nuisance, then no relief should have been granted.” Manifestly the business, the prosecution of which it was there said should be enjoined, was that of selling liquor in violation of the law. So that, as selling or keeping for sale on the premises after two or five years may be lawful and only the unlawful selling or keeping for sale constitutes a nuisance, the court rightly worded the decree so as to perpetually enjoin only the unlawful keeping for sale or selling of intoxicating liquors. [585] II. The decrees were entered against the several lessees operating the saloons and their employees. By [586] consenting thereto the defendants impliedly admitted having maintained places wherein intoxicating liquors had been either illegally kept for sale or sold. In re Thoma, 117 Iowa, 275; In re Application of Wilhelm, 124 Iowa, 381. The entry of the decree was an adjudication that the defendants had been guilty of maintaining nuisances and the prohibition therein must be construed with reference thereto. . It is not material what the oral understanding of the parties may have been nor what construction they may have given the decrees. These are to be viewed in the light of the pleadings and, when this is done, no construction is open save that defendants were thereby adjudged guilty of having maintained liquor nuisances and were enjoined from perpetrating like offenses thereafter. See Hemmer v. Benson, supra; Hammond v. King, 137 Iowa, 551; Lewis v. Brennan, 141 Iowa, 585. That the owners of premises alleged to have been used unlawfully have not been made parties furnished no obstacle to the entry of appropriate decrees against the lessees and those under them. Drake v. Kingsbaker, 72 Iowa, 443; Morgan v. Koestner, 83 Iowa, 136. 3. same: costs and attorney fees; establishment of lien Section ■ 2422 of the Code, authorizes the establishment of the judgment for costs, including attorney’s fees, as a lien on the premises providing the unlawful use of the premises was with the knowledge of the owner or that of his agent, and, as contend- ° ' e<b sl-lck knowledge may be inferred from circumstances. But it does not follow that the property may be destroyed or subjected to the payment of costs, including attorney’s fees, without notifying the owners thereof and affording them an opportunity to be heard. Several decisions of this court have proceeded on this theory. Shear v. Green, 73 Iowa, 688; Snedaker v. Jones, 74 Iowa, 235; Danner v. Hotz, 74 Iowa, 389. The principle is fundamental' and no argument is required for its vindication.. [587] 4. same: certiorari. III. In tbe last action only, do tbe owners of tbe premises alleged to have been illegally used complain. Though named in the petition for injunction, C. TI. Forney was not made a party by the service of ^ 0-Qginai notice. Hicks v. Williams, 112 Iowa, 691. C. M. Forney filed an answer, but as to him there was no hearing. As seen, the portion of the decree declaring the judgment a lien on the premises and that the writ of abatement issue against the same was erroneous, and the only remaining inquiry • is whether certiorari is the appropriate remedy. As to C. H. Forney who was without notice, the case is ruled by Le Grand v. Fairall, 86 Iowa, 211, and, as the portion of the decree complained of was without jurisdiction as to him, the proper remedy was by certiorari. See, also, Berkey v. Thompson, 126 Iowa, 394; Bardes v. Hutchinson, 113 Iowa, 610. C. M. Forney was a party and had answered and, notwithstanding this, the court, without a hearing, entered a decree as prayed against the property. But the court had jurisdiction of the party and of the subject-matter and, at most, the procedure was irregular and erroneous, and such as might have been corrected on the hearing of the issues joined by the petition and the answer of this defendant or upon appeal to this court. In these circumstances, a remedy hy certiorari was not available to him. Ferguson v. Incorporated Town of Rolfe et al., 119 Iowa, 342; Oyster v. Bank, 107 Iowa, 39; Ransom v. Cummins, 66 Iowa, 137. Of course, all interested in the land should have been made parties defendant, but exception on this ground might have been interposed hy C. II. ‘Forney in the district court or for the first time on appeal. Danner v. Hotz, 74 Iowa, 389. The omission of a necessary party is not a jurisdictional defect. Tod v. Crisman, 123 Iowa, 693. O. H. Forney can only complain in this proceeding of the portion of the decree affecting his interest as tenant in common and directing the issuance of a writ of [588] abatement against the premises, and declaring the judgment for costs a lien on his interest in the premises. In these respects the decree of the district court will be corrected, but otherwise allowed to stand. See section 4160, Code. 5. Same The result is that the rulings complained of in the first three suits insofar as considered are affirmed at the cost of the plaintiff therein. In the last suit, insofar as C. M. Forney is concerned, the petition is dismissed and one-half of the costs therein taxed to him; and on the petition of O. IT. Forney the decree of the district court is. corrected, so that the order of abatement .shall not run against the premises, and judgment for costs shall not be a lien on his interest therein, the other half of the costs being taxed to plaintiff in the injunction proceedings. First three cases affirmed; fourth case dismissed as to O. M. Forney, and modified, and affirmed as to O. FL Forney.