Dermedy v. Jackson

147 Iowa 620 | Iowa | 1910

Evans, J.

One Orr filed information against tbe defendant charging bim witb tbe violation of a liquor injunction entered some years ago in tbe case of Kessinger against Eirst National Bank and others, a suit to which tbe informant Orr was not a party. Nor was tbe defendant a party to such suit. The decree of injunction in such previous case provided, among other things, that the defendants and “each of them are further enjoined from using said building or premises or any part thereof as a place for the sale or keeping for sale of intoxicating liquors in violation of law, or permitting the same to be done by any other person or persons under their control, and said building .and premises are hereby enjoined as a nuisance and as a place for the illegal sale and keeping for sale of intoxicating liquors and against the use therefor by said defendants and any person or persons claiming by, through, or under them or either of them, and all other persons.”

i. Intoxicating liquors: injunction: scope of decree: constructive notice. I. That the defendant kept and sold intoxicating liquors upon the premises described in the information is It is urged in his behalf that it is not proven undisputed. that he had notice of the previous injunction. The proceeding was for contempt of court. It was sufficient for the informant to show that he violated the terms of the injunctional decree. Upon the filing of the information defendant was summoned into court to show cause why he should not be punished. Whether ignorance of the decree would have been a good showing of excuse or defense we have no occasion to determine. No such excuse or defense was offered either by pleading or evidence. The decree was sufficiently broad in its terms to enjoin'all persons from maintaining a nuisance on the premises described therein, and it was sufficient as a public record to impart constructive notice to all persons. Silver v. Traverse, 82 Iowa, 52. It is urged by the defendant that the cited case is inconsistent with the later case of Ruhlman v. Humphrey, 86 Iowa, 602. But the opinion in the latter case points out the clear distinction between the two cases. The same distinction was recognized in the later case of Newcome v. Tucker, 89 Iowa, 487. In the two later cases the decree under consideration only purported to enjoin the particular defendant in that case, and. the petitioners were discharged because they were not included in the terms of the decree alleged to be violated. Such point is not available to the petitioner in this case.

tempt: information: who may filename: prosecution. II. It is urged that the information was void and of no effect because the informant Orr was not a party to the original case, and because this proceeding was entitled in the name of the State of Iowa against the defendant, and because the informant Orr was not authorized to represent the State of x Iowa in such proceedings. It is not essential that information for contempt should be filed by the original plaintiff. The original plaintiff acted only in the public behalf. The same public is represented by the informant. Nor is it essential that the county attorney should appear in the prosecution of a contempt case, First Congregational Church v. Muscatine, 2 Iowa, 69; Fisher v. Cass County Court, 75 Iowa, 232; Brennan v. Roberts, 125 Iowa, 615. The fact that the proceeding was prosecuted in the name of the State of Iowa furnishes to the defendant no ground of complaint.

3. Contempt: proceeding. ■ Just what title should be borne by a contempt proceeding is a question which has never been definitely settled in this state, nor has it ever been deemed as very material. Manderscheid v. District Court, 69 Iowa, 240; Hatlestadt v. District Court, 137 Iowa, 146, and cases cited, supra. The offense charged is an offense against the authority of the court. It may be heard under the title of the case to which it is incident, or it may be entitled in the name of the state against the defendant. The only purpose of attaching any title to the matter is .that the proceedings iherein may be identified and separated from other proceedings. Such contempt proceedings are instituted under section 2407 of the Code. This section requires that there be filed with the clerk of the court an “information under oath setting out the alleged facts constituting such violation.” The statute does not provide how such proceedings shall he entitled, nor does it provide by whom the information shall be made. The information in the case at bar is in accord with the statute in question.

. tw„ „„ 4. Decree of signature o judge. III. It is urged by defendant that the previous decree the violation of which is charged against him is void in so far as it affects him for two reasons. The first of these is that the decree as entered of record purports to be signed by P. B. Wolfe, and ¿foes n0£ pUrp0r£ j,e signed by any judge of the. seventh judicial district. It is conceded that P. B. Wolfe was one of the judges of the seventh judicial district at the time of the entry of such decree. But it is claimed that his signature is not accompanied with his official designation, and that this is fatal to the decree as such. We see no merit in this contention. The record of the decree was sufficient without any signature of the judge thereto. The provision of the statute in this regard is directory only. Childs v. McChesney, 20 Iowa, 431; Donnelly v. Smith, 128 Iowa, 260.

_ ^functionfornfity with petition. The second reason urged against such previous decree is that its injunctional provisions were much broader than the petition upon which the decree was rendered, and that the court had no jurisdiction to grant more relief than was prayed. This point is not sustained by the record. The petition in question prays “that said building and the realty hereinbefore described be enjoined as a place for the sale or keeping for sale of intoxicating liquors in violation of law .... and that he may have such other relief as he may be found entitled to.” This prayer is broad enough to sustain all the terms of the decree as entered.

mjunction: contempt: identity of premises. IY. It is urged that there was no proof that plaintiff sold intoxicating liquors upon the same premises as those described in the previous decree. It is shown by the pres- . ent record that the place of illegal sale by the plaintiff was lot six, block thirteen, in the city of Muscatine. The previous decree covered the same description. The apparent discrepancy arises out of the fact that the previous decree described the building by name as Hotel Grand, while the present information describes it by name as Hotel Webster. Whether this apparent discrepancy arises out of a change of names or not the record is silent. The point is raised for the first time in this court. In the trial court plaintiff filed a motion for discharge upon ten specific grounds, none of which included any reference to the- apparent discrepancy which is now urged upon our attention. Inasmuch as the description of the real estate is definite and .controlling, and is the same in both proceedings, we think the identity of the premises is presumptively established thereby, notwithstanding the discrepancy in names.

7. Of the certification AND FILING OF EVIDENCE. Y. It is urged that the warrant of commitment issued by the court was void because the same was issued before the shorthand notes of the evidence were filed and made of record. This argument is accompanied with an alleged statement -of facts which do not appear in the abstract. It is said in the argument that the plaintiff was imprisoned on June 5th, and that -the notes were not filed until June 8th. It does not appear from the abstract when judgment was entered by the court. Out of abundance of caution we have referred to the original return to the writ filed in this case, and we learn therefrom that judgment was entered on June 5th, and that the shorthand notes of the evidence were made of record th'e same day. It is true that the certificate of the shorthand reporter states that the notes were filed on June 8th. The return and certificate of the judge is controlling here. If any mistake has been made in the record below, it should be corrected by proper proceedings there. It .may be said, also, that this action of the court was in no manner challenged in the original petition for the writ. It was first challenged by an amended petition filed after the ease had been fully argued and ready for submission. We find no illegality in the action of the lower court, and its order is affirmed.