Fisher v. Sliph

Supreme Court of Iowa

Fisher v. Sliph

134 N.W. 632, 154 Iowa 121

CourtSupreme Court of Iowa

DecidedFebruary 14, 1912

StatusPublished

Cited by1 cases

This text of 134 N.W. 632 (Fisher v. Sliph) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fisher v. Sliph, 134 N.W. 632, 154 Iowa 121 (iowa 1912).

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Opinion

Ladd, J.

To the petition alleging that the defendant Kate Sliph was owner of lot 125 in the city of Et. Madison, and that the building thereon was maintained as a place wherein intoxicating liquors were kept for sale in violation of law, and that Theo. Sliph vras in occupancy thereof and so keeping the same therein, that the same was a nuisance, and praying for statutory relief, the defendants interposed as a plea in bar a decree previously entered against Theo. Sliph only in an action wherein Ann Eoster was plaintiff, ordering “that the defendant be and they hereby are enjoined from maintaining said nuisance in the' premises described in the petition or any place in the Eirst judicial district of Iowa by selling or keeping for sale intoxicating liquors in violation of the laws of the state of Iowa.”

1. Intoxicating liquors: nuisance: judgment: conclusiveness. He was then owner of the premises, but Kate Sliph was owner thereof when the last action was begun. This decree entered in 1908 was adjudged a bar to the action begun in 1910, but it was not binding on Kate Sliph as purchaser, for it purported to enjoin Theo. Sliph only. Buhlman v. Humphrey, 86 Iowa, 597. It did not purport to enjoin the maintenance of the building as a nuisance, nor did it contain an order of abatement, and, in order to obtain such relief, the owner of the premises was a necessary party. Denmead v. Parker, 145 Iowa, 581. As to Kate Sliph, then, no decree had been entered, and, as to her, the plea in bar should have been overruled. Carter v. Bar-[125]*125tel, 110 Iowa, 211. See Carter v. Steyer, 93 Iowa, 433. As Theo. Sliph had ceased to be owner of the land, the decree entered in 1908 was as complete and effective as that prayed in the last action. Dickinson v. Eichorn, 78 Iowa, 710.

2. Same: injunction: sufficiency of prayer for relief. The prayer is broad enough to authorize an injunction against “all persons from using or occupying the premises for unlawfully keeping or traffic in intoxicating liquors.” Silvers v. Traverse, 82 Iowa, 52. It follows that the decree dismissing action against Theo. Sliph is affirmed, but otherwise is reversed, with costs taxed to appellee, As the issue raised by the plea in bar, erroneously designated in the pleadings as in abatement, only was heard, the cause against Kate Sliph and the premises is remanded to the district court for proceedings not inconsistent with what is here said. Kate Sliph.

Affirmed as to Theo. Sliph. Reversed as to Kate Sliph.

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Ladd, J.

To the petition alleging that the defendant Kate Sliph was owner of lot 125 in the city of Et. Madison, and that the building thereon was maintained as a place wherein intoxicating liquors were kept for sale in violation of law, and that Theo. Sliph vras in occupancy thereof and so keeping the same therein, that the same was a nuisance, and praying for statutory relief, the defendants interposed as a plea in bar a decree previously entered against Theo. Sliph only in an action wherein Ann Eoster was plaintiff, ordering “that the defendant be and they hereby are enjoined from maintaining said nuisance in the' premises described in the petition or any place in the Eirst judicial district of Iowa by selling or keeping for sale intoxicating liquors in violation of the laws of the state of Iowa.”

1. Intoxicating liquors: nuisance: judgment: conclusiveness. He was then owner of the premises, but Kate Sliph was owner thereof when the last action was begun. This decree entered in 1908 was adjudged a bar to the action begun in 1910, but it was not binding on Kate Sliph as purchaser, for it purported to enjoin Theo. Sliph only. Buhlman v. Humphrey, 86 Iowa, 597. It did not purport to enjoin the maintenance of the building as a nuisance, nor did it contain an order of abatement, and, in order to obtain such relief, the owner of the premises was a necessary party. Denmead v. Parker, 145 Iowa, 581. As to Kate Sliph, then, no decree had been entered, and, as to her, the plea in bar should have been overruled. Carter v. Bar-[125]*125tel, 110 Iowa, 211. See Carter v. Steyer, 93 Iowa, 433. As Theo. Sliph had ceased to be owner of the land, the decree entered in 1908 was as complete and effective as that prayed in the last action. Dickinson v. Eichorn, 78 Iowa, 710.

2. Same: injunction: sufficiency of prayer for relief. The prayer is broad enough to authorize an injunction against “all persons from using or occupying the premises for unlawfully keeping or traffic in intoxicating liquors.” Silvers v. Traverse, 82 Iowa, 52. It follows that the decree dismissing action against Theo. Sliph is affirmed, but otherwise is reversed, with costs taxed to appellee, As the issue raised by the plea in bar, erroneously designated in the pleadings as in abatement, only was heard, the cause against Kate Sliph and the premises is remanded to the district court for proceedings not inconsistent with what is here said. Kate Sliph.

Affirmed as to Theo. Sliph. Reversed as to Kate Sliph.

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134 N.W. 632, 154 Iowa 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-sliph-iowa-1912.

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