Lutz v. Aylesworth

66 Iowa 629 | Iowa | 1885

Reed, J.

1. ATTACHcovery ofls" exauünation jurisdictionV evidence. I. The transcript certified to us by defendant, in obedience to the mandate of the writ, contains the applica! t-ion on which he acted in making the order . . ° recimrmg plaintiff to attend before him and give information concerning the property of his firm, ^he application consists of the petition of the creditor and an affidavit of one member of the creditor firm, the creditor being a partnership. It is alleged in the petition that the firm of which plaintiff is a member is indebted to the creditor in the sum of $2,526; that a suit had been instituted in the circuit court on said claim, and that an attachment had been sued out, and that the creditor was unable to find a sufficient amount of property belonging to the debtor to satisfy said attachment.

In the affidavit the affiant swears that an attachment has been sued out in the cause, and that he does not know of enough property of the debtors to satisfy the creditor’s clahn, and that he believes that the debtors have property within the state not exempt from execution. The first position urged by counsel for plaintiff is that defendant did not have jurisdiction on this application to make the order, and consequently the order requiring plaintiff to attend before him, and every other order made in the course of the proceedings, is void. It is insisted that a judge is empowered to make the order requiring a party to attend before him, and submit to an examination concerning his property, only upon proof by competent evidence that a suit is pending against him in which an attachment has .been issued;, and that the only competent evidence of this fact would be the files and record of the proceedings in the action and the writ of' attachment, and that these were not produced before defendant, either at the time he made the order or upon the examination. The sufficient answer to the position is that the statute which authorizes the proceedings (Code, § 2968) provides that the judge shall make the order whenever it is made to appear by the affidavit of the plaintiff or the return of the writ that no • property is known to the plaintiff or the officer on which the attachment can be executed, or not enough to satisfy plaintiff’s claim, and 'it is farther shown by affidavit that the defendant has property in the state not exempt from execution. The facts which are required by this section to be shown before the order can be made were shown by the application on which defendant acted, and were shown -in the manner required by the section, viz., by the affidavit of plaintiff.

2. practice courtpf eontradiction of judges certificate to the evidence, II. What purports to be the evidence given by plaintiff on the examination before defendant is embodied in the transcript. Plaintiff filed in this court the affidavits of the short-hand reporter, who took the evidence . down at the time of the examination, and of one of his attorneys, who swore that the reporter was employed to take the notes by the attorneys of the creditor, and that no order was made by the judge for taking it, and that the transcript of the evidence was delivered by the reporter to the attorney who employed him, and that the judge took no notes of the evidence himself; but that he embodied in his return to the writ the transcript thereof made by the reporter for the creditor’s attorney, which was given him by the attorney. On this showing we are asked to disregard this part of the transcript. The certificate attached to the transcript by defendant is to the effect that it is a full, true and complete transcript of the record, proceedings and facts in the ease, and that it is as full, true and correct and complete as the same remains of record and on file in defendant’s office. It is not competent to contradict this certificate in the manner in which plaintiff seeks to contradict it. It is a sufficient authentication of the transcript, and must be accepted here as conclusive evidence of its correctness; and it shows that a record was made of the evidence given by plaintiff on the examination in question, and that the same remains on file in defendant’s office, and that a correct transcript of it is embodied in the record certified to us by the defendant in answer to, the writ.

3. contempt: mUmeiuTor: preservation oi evidence on winch it is based. III. It is next contended that plaintiff should be discharged, for the reason that it does not appear by the record that any statement of the facts upon w'hich the order committing plaintiff for contempt was . , , . founded was either entered of record or filed and preserved in the office of the judge, as required by section 3497 of the Code. The examination was had before the judge, and not before the court, and the alleged contempt consisted in the refusal by plaintiff to answer a question which the judge ruled was a proper one, and which he directed plaintiff to answer. As the judge does not keep a record, he was required by the statute (section 3497) to file and preserve a statement of the facts on which the order of commitment was founded; and it has been frequently held that a failure by the court or judge to comply with this requirement of the statute invalidates the order of commitment. Skiff v. State, 2 Iowa, 550; State v. Utley, 13 Id., 593; State v. Dougherty, 32 Id., 261; State v. Folsom, 34 Id., 583.

We think, however, that there was a substantial compliance with the requirement in the present case. It is shown by the transcript and the certificate attached thereto that the question which plaintiff refused to answer, and the ruling of the judge that it was a proper question and should be answered, and plaintiff’s refusal to answer it, were all taken down in Avriting at the time. The order of commitment Avas also taken down, and this writing was filed and is now preserved in the judge’s office. It is true that the only-writing made at the immediate time of the transaction was the short-hand reporter’s notes. But these were afterward extended, and what was filed and preserved was the transcript made by the reporter. But, as it contains a statement of the very facts which the statute requires the judge to embody in the statement which he is required to file and preserve, it answers every purpose of the statute. "

_. fud§eiofpunish tor. IT. It is finally insisted that the judge had no power to punish plaintiff for the alleged contempt, but that the power to impose such punishment is conferred alone on coul’t;s- This position is hot tenable. It is expressly provided by section 349 that “ the following acts or omissions are deemed to be contempts, and are punished as such by any of the courts of this state, or by any judicial officer acting in the discharge of an official duty: * * * 4. Disobedience to any subpoena issued by it and duly served, or refusing to be sworn or answer as a witness.” It cannot be doubted, we think, that under this section defendant had the power to impose the punishment which he did impose upon plaintiff for the act of which he was guilty. The exercise of such power under similar circumstances by a j udicial officer was affirmed by this court in Robb v. McDonald, 29 Iowa, 330; State v. Seaton, 61 Id., 563.

The order of the judge of the superior court is

Akfiemed.