State Ex Rel. Seeburger v. Dietz

Dietz was the proprietor of a drugstore in the city of Des Moines. Peet was his employee. The title to the property rested in the appellants Gadd, Garver, and McGlothlen, as trustees of the estate of one Garver. The court found that intoxicating liquors had been kept and sold on said premises by Dietz and Peet, and adjudged that said parties be permanently enjoined from maintaining a nuisance on said premises. The decree also enjoined the appellants Gadd, Garver, and McGlothlen, as trustees of the estate of Garver, from maintaining or allowing a nuisance to be maintained upon said premises or the ground upon which the building is located. The decree further ordered that said nuisance be abated, and that the building be closed for a period of one year unless sooner released as provided by law. The decree further recites:

"It is further ordered, adjudged, and decreed that the statutory mulct tax of $600 be and the same is hereby imposed against G.R. Peet and F.H. Dietz personally, and against the premises hereinbefore described."

Notice of appeal was served by the defendants Dietz and Peet, but no argument has been filed in their behalf, and the appeal as to them is deemed abandoned, and it is ordered dismissed.

The appellants Gadd, Garver, and McGlothlen have seen fit to submit but two propositions, and they rest their appeal wholly upon them. The first of these is as follows:

"The court erred in taking into consideration, at the time he decided this case, the testimony of Officer Brown, relative to the statements made by the two alleged liquor purchasers."

The case was tried in equity, and the court made no rulings upon the admissibility of testimony. Under such 1. APPEAL AND a situation, it is presumed on appeal that the ERROR: court's decision was based only on competent review: testimony, in the absence of a showing to the presump- contrary. Joyner v. Utterback, 196 Iowa 1040, tions: and cases cited. There was evidence in the incompetent record, outside of the testimony referred to, to evidence in sustain the findings and decree of the district equity court. proceedings.

The second proposition urged by the appellants is as follows:

"That the plaintiff has failed to establish by competent evidence that any liquor was manufactured, sold, dispensed, or kept on said premises in violation of the law."

The evidence in behalf of the appellee tended to show at least two separate sales of intoxicating liquor upon said premises, as well as the finding of alcohol which, at the time of a search of said premises, appeared to have been 2. INTOXICATING very recently rendered unfit for use as a LIQUORS: beverage by the insertion of crystals of nuisance: bichloride of mercury, portions of which were injunction, still visible in the liquid. There was testimony abatement, to the effect that the reputation of the place and tax. as a place where intoxicating liquors were sold was bad. Such evidence was admissible. Section 2022, Code of 1924. The evidence regarding sales was substantially the same as in Dietz v. Cavender, 201 Iowa 989. It was sufficient to establish that the place was maintained as a nuisance.

No other propositions than the two above discussed are argued or presented in any manner whatever by appellants. We find no merit in any of the matters claimed by appellants. The decree of the district court must, therefore, be affirmed.

The appeal as to Dietz and Peet will be dismissed; as to Gadd, Garver, and McGlothlen, it will be affirmed. It is so ordered. —Dismissed as to appellants Dietz and Peet; affirmed as toappellants Gadd, Garver, and McGlothlen.

STEVENS, VERMILION, and MORLING, JJ., concur.

De GRAFF, J., dissents.

ALBERT, J., joins in dissent on legal question.