
    Michael Steyer, Appellant, v. Patrick McCauley, Jr., Bertha Rosenthal, Emil Rosenthal, and the Buildings, Etc.
    Liquor Injunction; second injunction: Abatement. An injunction ■enjoining a liquor nuisance and proceedings pending thereunder for -contempt, though no writ of abatement issues, though the attorneys in the main suit and the contempt proceedings are not the same, and though there is unexplained delay in bringing the contempt case to hearing,’are a bar to an action against the defendant by another citizen to obtain a second injunction for a similar offense on the same premises; no fraud or collusion being charged in the obtaining of the first injunction.
    
      Appeal from Winneshiek District Court. — Hon. A. N. Hobson, Judge.
    Wednesday, May 12, 1897.
    This is an action in equity begun August 10, 1896, to restrain the defendants from maintaining an alleged liquor nuisance on a certain lot in the town of West Decorah, Iowa. The prayer asks that the nuisance be abated; that defendant Emil Eosenthal be enjoined from using or permitting said premises to be used for the keeping of intoxicating liquors with intent to be sold in violation of law; also, that each defendant be enjoined from selling or keeping for sale intoxicating liquors on said premises or elsewhere in said judicial district. An order was made for a hearing upon the. application for a temporary injunction. Evidence was taken in support of the application, and in resistance, thereof. Upon said hearing it appeared that the mulct law was operative in the town of West Decorah; that defendant Emil Eosenthal claimed to have complied with said law Email respects; that at a prior term of court said Emil Eosenthal had been enjoined from keeping, using and occupying the same premises, by himself or agents, for the sale of intoxicating liquors; that said injunction was granted upon the petition of one Cameron, that in January, 1895, said Cameron commenced proceedings against defendant Emil Eosenthal for contempt for a violation of said injunction; and that said contempt proceeding is still pending. The court refused the application for a temporary injunction, and, the cause thereafter coming on for a hearing upon the merits, the defendants denied all of the allegations of the petition, and pleaded the former action, and the injunction and proceedings thereunder, as still pending. Evidence was introduced,, and it was agreed that, in the action in which the inj unction was granted, J. B. Kaye was the attorney for the plaintiff, Cameron; that no writ of abatement issued in that suit. Plaintiff amended his petition, admitting the issuance of the injunction, and says that the plaintiff in that action and in this is not the same; that the attorneys are different, and that no writ of abatement issued in the former suit; that McCauley and Bertha Eosenthal were not parties to the former suit. A .decree was entered dismissing plaintiff’s petition, and rendering a judgment against him for costs. Plaintiff appeals. —
    Affirmed.
    
      E. B. Acres for appellant.
    
      Geo. W. Adams for appellees.
   Kinne, C. J.

This case presents the question whether, after an injunction has been issued restraining one from continuing a liquor nuisance, and after proceedings thereunder have been commenced against him for contempt for violating said injunction, which proceedings are still pending and undisposed of, another citizen of the county may maintain another suit against the same and .other persons as defendants for a like offense committed in and upon the same premises, and obtain another injunction. It was held in Dickinson v. Eichorn, 78 Iowa, 710 (43 N. W. Rep. 620), that a decree for an injunction and the abatement of such a nuisance obtained by one citizen of a county, although not enforced, was a bar to a second suit for the same purpose by another citizen for the abatement of the same nuisance, in the absence of a showing that the former decree was obtained by collusion, with the intent to use it to defeat the purposes of the law. So far at least as the defendant Emil Rosenthal is concerned, that case seems to us decisive of this appeal.

It appears that in November, 1891, at the suit of one Camerop., Emil Rosenthal was perpetually enjoined from maintaining the same kind of a nuisance at the same place; that in January, 1895, said Cameron instituted proceedings against Emil Rosenthal for a violation of said injunction, which proceedings are still pending and undetermined. There is nothing in this record to show why this contempt case has not been heard. There is no suggestion in the record of any bad faith or collusion in obtaining the original injunction. For some reason, which does not clearly appear, no order of abatement was entered in that suit. The facts in this case, so far as the defendant Emil Rosenthal is concerned, are identical with those in the cited case, except in that case the same person was attorney for the plaintiff in both actions, and the decree in that case ordered an abatement of the nuisance. In that ease no proceedings had been instituted against the defendants for contempt. We do not regard the fact that the attorney appearing in this case is not the same person who appeared in the original case as of confaollimg importance, especially in the absence of anything ¡showing any reason why the contempt proceedings has not been heard, and there being no charge or evidence of bad faith on the' part of the party or attorney instituting the original and contempt proceedings. Only about six months had intervened between the time the proceedings for contempt were begun and the bringing of this action, and we can hot say, in the absence of other evidence, that there was not good cause for this delay, or that said proceedings were not being prosecuted in good faith. The case of Carter v. Steyer, 93 Iowa, 533 (61 N. W. Rep. 956), wherein the right to a second inj unction is upheld, is, in its controlling facts, essentially different. from the case at bar.

As to the defendant Bertha Rosenthal, there is no evidence showing that she was in any way concerned in running or operating the saloon, an<J no reason appears why she should have been made a party defendant. As to McCauley, he appears to have been a bartender for the defendant Emil Rosenthal, and as such was his agent, and is clearly embraced within the decree rendered in the original case in which an injunction was rendered, Silvers v. Traverse, 82 Iowa, 55 (47 N. W. Rep. 888); Buhlman v. Humphrey, 86 Iowa, 597 (53 N. W. Rep. 318).

We think the reasoning of the Dickinson Case is conclusive as to the questions here presented, and we need not further consider them. The decree of the district court is affirmed.  