sance.

Same-suit by lessee.

2. A lessee may maintain a suit to enjoin the maintenance of a nuisance to the injury of his business, and is not confined to an action for damages. Appeal-questions raised de novo.

3. That an injunction against the maintenance of a nuisance is too broad cannot be suggested for the first time on appeal.

Nuisance-shooting gallery-injunction.

4. The operation of a shooting gallery and musical instruments in connection therewith, in such a way as to constitute a nuisance to adjoining property, may be enjoined.

A

(December 21, 1905.)

Wood, Nuisances, 3d ed. p. 1232; Brown v. Woodworth, 5 Barb. 550; Evans v. Evans, 2 Campb. 491; Barker v. Barker, 3 Car. & P. 557; Cook v. Champlain Transp. Co. 1 Denio, 91; Symonds v. Seabourne, Cro. Car. 325.

Mr. Harry H. Johnston, for respondent: If plaintiff had, as a lessee, a right to bring a suit for damages, he was entitled to equitable relief.

Carl v. West Aberdeen Land & Improv. Co. 13 Wash. 619, 43 Pac. 890; Deaconess Home & Hospital v. Bontjes, 207 Ill. 553, 64 L.R.A. 215, 69 N. E. 748; Kinlock v. Keames, Robertson Select Dec. 175; Knox v. New York, 55 Barb. 404; DeLaney v. Blizzard, 7 Hun, 7.

Fullerton, J., delivered the opinion of the

court:

The respondent brought this action against the appellants to enjoin them from operating, in connection with their business, a shooting gallery and two certain musical instruments known, respectively, as a

A tenant can only sue for damages, and

Case Note. The few cases that are in point sustain the decision in the foregoing case, that the owner of the leasehold may maintain a suit in equity to enjoin or abate the continuance of a private nuisance which affects the possession as well as the freehold. State ex rel. Violett v. King, 46 La. Ann. 78, 14 So. 423; DeLaney v. Blizzard, 7 Hun, 7: Knox v. New York, 55 Barb. 405. So, the court, in Lowe v. Prospect Hill Cemetery Asso. 58 Neb. 94, 46 L. R. A. 237, 78 N. W. 488, said that it saw no reason why a tenant for years or for life, rightfully in possession of real property, may not maintain an action to abate a private nuisance affecting such property. This, however, was obiter. In Bly v. Edison Electric Illuminating Co. 172 N. Y. 1, 58 L. R. A. 500, 64 N. E. 745, the decision was merely to the effect that the renewal by a tenant of his lease after the creation by a third person of a nuisance by his method of conducting a business, injuriously affecting the right of occupancy, did not preclude the tenant from maintaining an action for damages. A decree granting an injunction in this case had been reversed by the appellate division, and that reversal was not complained of, as the plaintiff's lease had expired, and she had vacated the premises, so that there was no longer any necessity for an injunction. The opinion, however, seems to imply that the existence of the nuisance before the renewal of the lease would be no more fatal to a suit to abate or enjoin the nuisance than it would be to an action to

that their operation constituted a public nuisance specially injurious to himself. At recover damages. In Learned v. Castle (Cal.) 4 Pac. 191, it was held that actual possession is prima facie evidence of ownership of land; and one in possession may maintain an action to abate a nuisance which injuriously affects his enjoyment of the possession. And in Jung v. Neraz, 71 Tex. 396, 9 S. W. 344, it was held that a son who lived in a house on a tract of land belonging to his father was properly joined with the latter in a suit to enjoin a nuisance affecting the enjoyment of the property. The nature and extent of the son's interest do not appear.

It will be observed in the above cases holding that the tenant may maintain a suit to abate or enjoin the nuisance, the relief was sought in equity. The rule is different under the old common-law remedy by writ or assize of nuisance, or the statutory action at law substituted therefor. Under that form of remedy, the complaint, in order to obtain an abatement, must allege that the plaintiff was the owner of the freehold, which would include the owner of the inheritance or of a life estate, but would exclude a tenant for years. Ellsworth v. Putnam, 16 Barb. 565; Hutchins v. Smith, 63 Barb. 251. The statement in 2 Wood on Nuisances, page 1232, that a tenant can only sue for damages, and cannot claim an abatement of the nuisance, clearly has reference to the common-law remedy or statutory remedy at law for the abatement of a nuisance, and not to the remedy in equity.

The appellants first attack the sufficiency of the complaint. It is contended that, because the respondent neither alleged that he had suffered damages in any specific sum, nor demanded judgment for damages in any specific sum, in his complaint, the same is fatally defective, and insufficient to support a judgment or order of any kind. But we think the complaint sufficient to sustain an order for a temporary injunction. Aside from the fact that an injunction may be sued out to restrain the erection or creation of a merely threatened nuisance, there is in this complaint an allegation of substantial injuries, as well as a showing that the continuance of the acts complained of will work serious and irreparable injury to the respondent's business. It is alleged that the appellants and respondent are tenants in the same building; that the appellants exhibit pictorial views, enlarged and made attractive by electrical devices; that the respondent conducts a hotel and lodging house, and was first in the order of time; that the installation of these musical instruments and the shooting gallery by the appellants has already driven away some 14 of his patrons, and will, if not abated, drive away the remainder and prevent him from obtaining others, to the ruin of his theretofore profitable business. These allegations, we think, show, not only substantial damages already suffered, but that the respondent will continue to suffer substantial damages so long as these mechanisms are operated by the appellants.

It is next said that, because the respond ent has only a leasehold interest in the property, his remedy lies in an action of damages for the wrongs done him, as no one but the owner of the fee can maintain a suit to enjoin the continuance of a nuisance. Were the nuisance complained of merely an injury to the freehold, it may be that this contention could be maintained, but here the nuisance alleged is one that works an injury to the business of the lessee, not an injury to the freehold, and his right to maintain an injunction must be determined by the character of the injury done him, and the effectiveness of his remedies at law, not upon the title by which he holds the property in which he conducts the

It is next complained that the injunction is too sweeping, in that it enjoins the appellants from operating the shooting gallery and musical instruments at all times, while it does not appear that the operation in certain parts of the day would seriously interfere with the respondent's business. But this question seems not to have been sug gested in the trial court. There the contest was over the right of the respondent to an injunction at all, and the court was not asked to limit the operation of the injunction to certain parts of the day. For the reason that it was not suggested below, it will not be determined here.

Lastly, the appellants contend that the evidence was insufficient to justify the order. On this question we think there can be but little doubt. Manifestly the operation of the contrivances complained of at the place where the appellants operated them constituted a nuisance specially injurious to the respondent. He was therefore entitled to have their operation enjoined, and the court did not err in so holding.

The order appealed from is affirmed.

Mount, Ch. J., and Hadley, Rudkin, Crow, Root, and Dunbar, JJ., concur.

IOWA SUPREME COURT.

J. WALTER CUYKENDALL, Appt.,

V.

NELSON R. DOE et al.

(- Iowa, - 105 N. W. 698.)

Judgment-upon warrant of attorney-validity in other state.

1. A judgment entered upon confession of an attorney, as authorized by contract of the parties and the laws of the state, will not be denied enforcement in another state,

Case Note. The effect in other states of is stated in 2 Black, Judgments. 2d ed. § a judgment confessed on warrant of attorney 868, as follows: "There is nothing in the character of a judgment entered upon confession without action to prevent it from being available as a cause of action in another state, equally as well as one renkind of a judgment for instance, one condered upon adversary proceedings. If any fessed before the prothonotary or clerk of the court in vacation-is recognized and enforced as a 'judicial proceeding' by the laws of the state from which it comes, it will be entitled to full faith and credit in the

merely because its statutes do not provide for confessions upon warrant of attorney. Same-procedure.

2. A provision in a warrant of attorney to confess judgment, that the attorney may appear for the debtor at the suit of the creditor and confess judgment in his favor, does not require the bringing of an actual suit to render the confession valid. Warrant of attorney-provision for stay of execution.

3. A provision in a warrant of attorney to confess judgment on a note, for stay of execution until the date upon which it becomes due, does not prevent the confession of judgment after that time.

Same-time.

ment in vacation, when permitted by the laws of the state, is authorized by a contract providing that it may be made "as of the last week, or any other subsequent term or time after the date hereof."

Judgment-on warrant of attorney-files.

5. The validity of a judgment entered on a promissory note by confession is not affected by the fact that the note is not kept on file.

Same-limitation of actions.

6. A judgment entered upon a promissory note within the time permitted by the laws of the state cannot be defeated in another state because its statute of limitations had barred the debt before the judg

And in 2 Freeman, Judgments, 4th ed. § 558a, it is said: "A judgment by confession, whether made by defendant personally, or by someone acting under a warrant of attorney granted by him, is entitled to the same faith and credit in other states as it has in the state wherein it was entered."

The rule is similarly stated in 13 Am. & Eng. Enc. Law, 2d ed. p. 1006. See also Sipes v. Whitney, 30 Ohio St. 69; Nicholas v. Farwell, 24 Neb. 180, 38 N. W. 820; Crafts v. Clark, 38 Iowa, 237; Kingman v. Paulson, 126 Ind. 507, 22 Am. St. Rep. 611, 26 N. E. 393.

The objection to the enforcement of such judgments in another state, considered in CUYKENDALL V. DOE, that, since the statutes of such other state do not provide for the confession of judgments in such manner, such judgments are against the policy of the state, does not seem to have been much discussed. The objection, however, was urged upon the court in Crim v. Crim, 162 Mo. 544, 54 L.R.A. 502, 85 Am. St. Rep. 521, 63 S. W. 489, without effect.

And in Snyder v. Critchfield, 44 Neb. 66, 62 N. W. 306, in which it appears that such judgments are not known to the jurisprudence of Nebraska, it was held that such a judgment, rendered in another state, had the same force as a judgment on adversary proceedings.

In New York state, in which judgment notes are not authorized by statute, it has been held that a judgment duly entered in another state on a warrant of attorney is as conclusive in all other states as in the state where it is entered. Teel v. Yost, 128 N. Y. 387, 13 L. R. A. 796, 28 N. E. 353.

Accordingly, it has been held that a judgment confessed on a warrant of attorney contained in a promissory note in favor of an indorsee, in the state where it was made, is enforceable in another state, although by the laws of such other state such a note would not be negotiable. Richards v. Barlow. 140 Mass. 218, 6 N. E. 68. A judg ment so obtained in a state in which it is valid is entitled to full faith and credit

a resident of the state in which the judg ment was taken. Randolph v. Keiler, 21 Mo. 557. And such a judgment will be enforced in another state, although the defendant had, at the time of its rendition, ceased to be a resident of the state where it was rendered. Ritter v. Hoffman, 35 Kan. 215, 10 Pac. 576; Kitchen v. Bellefontaine Nat. Bank, 53 Kan. 242, 42 Am. St. Rep. 282, 36 Pac. 344.

A warrant of attorney to confess judg ment on a note "in any court of record" confers jurisdiction on the court of the state in which the note was made, sufficient to sustain its judgment when sued upon in another state, even if the warrant could not give authority to confess judgment outside of the state in which it was made. First Nat. Bank v. Garland, 109 Mich. 515, 33 L.R.A. 83, 63 Am. St. Rep. 597, 67 N. W. 559.

A judgment by confession, entered in another state in conformity to the terms of a warrant of attorney executed in that state, by the person who was at the time a resident thereof, must be given full faith and credit, as a judgment rendered by consent, although it was rendered without any personal service on the defendant. Van Norman v. Gordon, 172 Mass. 576, 44 L.R.A. 840, 70 Am. St. Rep. 304, 53 N. E. 267; Coleman v. Waters, 13 W. Va. 278: She!merdine v. Lippincott, 69 N. J. L. 82, 54 Atl. 237.

Such a judgment cannot be collaterally impeached in the courts of a sister state for mere irregularity (Patterson v. Indiana, 2 G. Greene, 492); though the want of jurisdiction of the court rendering it may be shown; as, where the judgment was entered upon a note before its maturity under a warrant of attorney which conferred authority to enter judgment only after maturity (Spier v. Corll, 33 Ohio St. 236). And it may be shown that a person in whose favor judgment was confessed on a note, under a warrant of attorney authorizing such confession in favor of the holder of such note, was not in fact a holder thereof. National Exch. Bank v. Wiley, 3 Neb. (Unof.) 716, 92 N. W. 582.