#### Ellwood v. Price.

1. Intoxicating Liquors: actions to enjoin nuisances: continuance for trial on depositions: practice. Conceding that actions to restrain nuisances caused by the unlawful sale of intoxicating liquors stand upon the same footing as to time of trial as actions to foreclose mortgages, (compare Code. §§ 2742, 2744, 2745; Chap. 66, § 1, Laws of 1886; *Holbrook v. Fahey,*51 Iowa, 406.) yet such an action should not be Continued at the appearance term, against the objection of the plaintiff, on the ground that the defendant elects to take his evidence by depositions, unless the court first determines and makes it of record that the case is to be tried on depositions; for until such order is made of record there is no reason for a continuance; and to grant a continuance in such a case, without such previous order, is reversible error.

*Appeal from Howard District Court.*

Saturday, October 22.

Action in equity, in which the relief asked is an injunction restraining the defendant from keeping and maintaining a place for the sale of intoxicating liquors. From an order of the court granting a continuance, on the application of the defendant, the plaintiff appeals.

*W. K. Barker*and *H. T. Heed,*for appellant.

No appearance for appellee.

Seevers, J.

The defendant is a registered pharmacist, and the petition states, in substance, that he has established, and is keeping and maintaining, a place for the illegal sale of intoxicating liquors, and that he has sold, and continues to sell, the same. An injunction was asked to restrain the nuisance thus caused. The defendant answered the petition, and, issue being thus joined, the defendant, at the appearance term, stated orally to' the court that he elected to take his evidence in the form of depositions, and claimed a continuance therefor. The plaintiff at the same time demanded a trial. The court made the following order: “ Defendant appears, and says that he elects to take his evidence by depositions, *85and claims a continuance therefor. Continuance granted, and plaintiff excepts. Plaintiff demands trial at the present term, which is refused, and he excepts.”

It is provided by statute that “in equitable actions wherein issue of fact is joined, all the evidence offered in the trial shall be taken down in writing; or the court may order the evidence, or any part thereof, to be taken in the form of depositions; or either party may, at his pleasure, take his testimony, or any part thereof, by depositions.” (Code, § 2742.) “ Except where otherwise provided, causes shall be tried at the first term after legal and timely service has been made.” (Code, § 2744.) “ The appearance term shall not be the trial term for equitable actions, except those brought * * * to foreclose mortgages. * * (Code, § 2745.) These sections were construed in *Holbrook v.*Fahey, 51 Iowa, 406, and it is there said that “ if, in any cf the eases designated in section 2745, the court, in its discretion, orders the evidence to be taken down in the form of depositions, the appearance term cannot be the trial term; but if no such order be made, and the court orders all the evidence offered on the trial to be taken down in writing, there need be no continuance, unless for cause, and the appearance term is the trial term in these classes of equitable actions.”

It is provided by statute that actions in equity, brought to restrain a nuisance caused by the unlawful sale and keeping for sale of intoxicating liquors, “ shall be triable at the first term of court after, due and timely notice of the commencement thereof has been given.” (Section 1, *c.*66, Acts 21st General Assembly.) Counsel for appellant contend that this statute requires that all actions like the one at bar shall be tried at the appearance term; and therefore, as we understand counsel, the case cannot be continued for the purpose of taking depositions. We do not deem it necessary to determine this question. Eor the purposes of this opinion it will be conceded that this class of actions stands upon the same footing as to the time when the same may or should *86be tried as actions brought for the foreclosure of mortgages, and this is as favorable a view for the appellee as can possibly , be taken.

It will be observed that the court failed to make any order whatever as to the mode of trial. But as one party asked a, continuance for the purpose of taking depositions, and the other was insisting on a trial, we think it should be assumed that the contention, in fact, was as to tbe mode of trial, and that tbe court should have determined, and caused to be entered of record, that the case should be beard on depositions, before continuing the cause. As tbe case now stands in tbe district court, neither party is required to take depositions; or one may do so, and the other not. Now, section 2742 of the Code provides that either party, at pleasure, may take his evidence in the form of depositions. We do not think, if either objects, that an equity cause can be continued, for tlie purpose of trial, until the mode of trial has been determined and made a matter of record; for tbe reason that, if the court does not order that the case be tried on depositions, there is no reason for the continuance, and tbe court should order the trial to proceed upon written evidence taken down in open court. Reversed.