State v. Frahm

80 N.W. 209, 109 Iowa 101

• Court: Supreme Court of Iowa
• Decided: October 4, 1899
• Status: Published

Opinion

Robinson, C. J.

Tbis action was commenced on tbe twenty-eigbtb day of November, 1895. Tbe original petition alleged tbat tbe defendant Jobn S. Frabm ivas maintaining a building on lot 1 in block 7 of tbe incorporated town of Ario-n for tbe sale of intoxicating liquors in violation of law; tbat on tbe fourth day of October, 1895, and from tbat time until tbe filing of tbe petition, be bad, by himself and employes, illegally sold intoxicating liquors in tbe place described; tbat bis co-defendant, Tina Frabm, is tbe owner o-f tbe lot and tbe building thereon, and knows tbat tbe building is used for saloon purposes in violation of law. Tbe bearing of the cause was commenced on tbe thirtieth' day of December, 1896, and on tbat day tbe plaintiff filed an amendment to tbe petition in which it was alleged that “the place whereon tbe saloon mentioned in plaintiff’s petition was kept was lot 2 of block J of tbe town of Avion.” On tbe next day tbe plaintiff filed a second amendment to tbe petition, wbicb alleged tbat from tbe fifteenth day of June, 1895, to tbe thirty-first day of the next month, the defendant Frahm was continuously engaged in tbe sale of intoxicating liquors, and in maintaining a place wherein be kept, offered for sale, and sold such liquors, in violation of law; tbat bis co-defendant was and still is tbe owner of tbe premises, and consented to tbe sales. Tbe court found tbat during tbe months of June and July, 1895, Frahm maintained a building on lot 2, described, in wbicb be kept for sale and sold intoxicating liquors in violation of law; that Tina Frahm, wife of her co-defendant, owned tbe premises, and knew of and consented to tbe use made of them by her husband; tbat at tbe time of tire trial tbe defendants occupied tbe premises as a homestead, for tbe purpose of preventing tbe prosecution of an action for tbe abatement of tbe nuisance*. Tbe relief granted was tbe enjoining of Frahm from keeping or offering for sale or selling intoxicating liquors “within tbe state of Iowa, tbe Sixteenth judicial district thereof, and particularly on lot 2,” and the allowance of an attorney’s fee of thirty-five dollars and costs, wbicb were made a lien on the lot, for tbe enforcement of wbicb a special execution was authorized.

I. Tbe defendants complain of tbe action of tbe court in permitting tbe filing of tbe amendments to the petition. Tbe amendments were filed without objection, but a motion to strike tbe first one was overruled. We do not discover any error in tbat ruling.

II. Tbe evidence shows that lot 2 and tbe building thereon were used for tbe illegal keeping for sale and selling of intoxicating liquors during nearly all of June and July, 1895, and tbat IVIrs. Frahm owned the property, and knew 1 of and consented to tbe use wbicb was made of it. But about tbe first of August of tbat year* tbe use of the premises for saloon purposes was abandoned^ the barroom was partitioned into four rooms, and in September, 1895, the defendants, with their three children, moved into the building, and have since occupied it as a dwelling house. For about four months before this action was commenced, and for about seventeen months before the petition was made to apply to the premises in question, they were not used for the purpose of keeping for sale or selling therein intoxicating liquors in violation of law. It appears that in July, 1895, an action to enjoin Frahm from maintaining a nuisance on the premises in question was commenced, and that an arrangement was then made between him and the county attorney that he should quit the business of selling liquor in those premises, and pay a part of the costs, and that the case should then be dismissed. The business was discontinued, as stated, and the case was dismissed. It appears that Frahm after-wards commenced the saloon business in the building on lot 1, described in the original petition, and also owned by his wife, but that fact would not authorize the relief granted in this case. We said in Clark v. Riddle, 101 Iowa, 270, that an injunction in such a case as this does not run against the person for the mere selling of liquor in violation of law, and that no court has jurisdiction to enjoin one from selling liquor independent of the place where it is sold. The question to be determined is, was Frahm keeping or selling intoxicating liquor illegally in the building on lot 2 when this action was commenced ? The only answer which the evidence justifies is that he was not. State v. Severson, 88 Iowa, 714; Eckert v. David, 75 Iowa, 302; Shear v. Brinkman, 72 Iowa, 698. The judgment of the district court is reversed.