Morris v. Connolly

85 N.W. 789, 113 Iowa 545

• Court: Supreme Court of Iowa
• Decided: April 12, 1901
• Status: Published

Opinion

Given, C. J.

—I. The contention is as to the construction to be given to that part of section 2410 as follows: “And if the proceeding be an action in equity and said bond he given and costs therein be paid before judgment, the action shall 'be thereby abated.” Appellant’s counsel insists that to construe the word “action” according to its ordinary meaning renders it- inconsistent with other provisions of chapter 6, title 12, and that the intention of the legislature is that in such case it is the nuisance, and not- the action, that is to he-abated. We see no inconsistency in the law, and no warrant for the construction contended for. The condition of the bond is that the owner will abate the nuisance; and its penalty, a guaranty that it will be done; and as this is the principal object of an action in equity, under section 2405, tlie law may well provide that upon its being done tbe action shall be thereby abated. Tbe action being abated, there was no case in which to decree an injunction and writ of abatement, and no nuisance to abate. See Morris v. Lowry, 113 Iowa, 544. — Arrirmed.