126 Iowa 317 | Iowa | 1905
— A judgment in behalf of the State for $600 fine and costs was obtained in a suit instituted by defendant against the plaintiffs in this action for the illegal selling of intoxicating liquors in violation of an injunction. ' Thereafter the Governor remitted the fine on condition that the costs be paid. The costs were paid, including the attorney’s fee provided for in such cases, which was taxed as part of the costs, under a provision found in section 2406 of the Code. Subsequently, without any notice to these plaintiffs, the judge of the court in which the judgment for the fine had been entered made an order in vacation directing the clerk to issue execution against the plaintiffs for the collection of ten per cent: of the fine which had been remitted, as additional attorney’s fees taxable as costs in the case under provisions of the Code. The present action is brought to enjoin the enforcement of such execution. The provision of the Code relied upon is as follows:
Section 2429. In all actions in equity against persons charged with keeping a nuisance, and to abate the same, and all proceedings for a contempt for violating any injunction, temporary or permanent, isued or decreed therein, the court or judge before whom the same shall be heard and deter
The judge is authorized, on. application made to him, to enter an order in vacation directing the clerk or sheriff as to the issuance or enforcement of an execution. Code, section 3843. But such an order can be made only after notice to the opposite party. Code, sections 3834-3841. While the notice required on an application to the judge in vacation for relief incident to the case, of which the court has acquired jurisdiction, is not necessarily the same kind of notice as that required of the institution of an action, it is nevertheless essential, in order that the judge have authority to act, and we think that it is jurisdictional. The action of the judge in the present case, on which the execution- now sought to be enjoined was based, was purely ex parte, and without notice of any kind to the adverse party. The judge’s order was therefore void.
The judgment of the trial court enjoining the enforce-, ment of the execution is affirmed.