174 Iowa 417 | Iowa | 1916
This ease is before ns on certiorari. The petition for the writ alleges:
“Tour petitioner now complains that said judge acted
Thereupon, the petitioner for the writ sets out the opinion of the Supreme Court on the former hearing. The former opinion, to which reference is made; simply holds that, under the record made in that case, which was then before this court, the district judge erred in discharging the defendant, and this court said:
“It follows that the learned district judge erred in the discharge of the injunction defendant, and that the order of discharge must be annulled. Reversed. ’ ’
The record now before us, so far as it discloses anything, discloses that the district court, following the finding of this court, and in obedience thereto, annulled and set aside its former order, cited the defendant Keuchmann again to appear and show cause why he should not be adjudged in contempt. The defendant did appear, in obedience to said order, and thereupon the cause was re-opened and retried. The defendant was permitted to and did introduce further testimony in his own defense. The cause was then submitted to the district court upon the record then and there made, and the court again found the defendant not guilty of contempt, and discharged him. Whether the testimony, as given on the former trial, was again submitted to the court, or was before the court, the record does not disclose.
None of the testimony introduced on this trial has been certified to this court, nor has the “further testimony offered by the defendant in his defense” been certified here. We are asked to say that the judge erred in discharging the defendant upon the recox-d then made, which is not before us. We have no means of knowing what the record is, upon which the judge acted in discharging the defendant. If the evidence in the trial below was the same, or substantially the same* as
The holding on the former decision was that Centennial Tonic Bitters contained sufficient alcohol to make it an intoxicating liquor, capable of being used as a beverage. The finding of the district court now under consideration is that this Bitters, as compounded and sold by the defendant (we have no means of knowing how it was compounded and sold by the defendant), was, in fact, a medicine, and was not reasonably capable of being used as a beverage; and, as compounded by the defendant, the defendant, as a registered pharmacist, had a legal right to sell. There is nothing before us on this hearing except the application for the writ of certiorari, the order of the judge for the writ and the service of the writ, the judgment of the court below, and the opinion of the Supreme Court upon the former hearing.
The contention of the plaintiff seems to be that, when, this court annulled the former order and reversed the case, the district court should have proceeded at once to pronounce judgment of contempt on the record as made on the former trial, without any further opportunity to the defendant to be heard, and that the court erred in the retrial of said cause, and in permitting the defendant to introduce further testimony. To support this contention, plaintiff relies upon Sexton v. Henderson, 47 Iowa 131, and Lombard v. Gregory, 88 Iowa 431. Both of these cases were equity cases, triable de novo in this court, and the judgment and decree of this court were final and conclusive, and ended the litigation. Nothing further remained for the district court except to enter a judgment or order in accordance with the final judgment and decree of this court.
1 We are also cited to Lord v. Ellis, 11 Iowa 170. In this
“When this ease, at the December Term, 1859, of this court, was remanded, the order directed that the district court affirm the judgment of the justice. Under this order, the court below had nothing to do but enter the judgment as directed. ’ ’
In the said ease, there was a direct order from this court to the court below to do. a certain thing, leaving no discretion in the district court in the premises. Upon procedendo reaching the district court, the plaintiff moved for an affirmance of the judgment of the justice court. The court said: ‘ ‘ The motion of appellant for an order affirming the judgment of the justice should have been sustained”, the reason being that this court had ordered the district court to so do.
Our attention is called to Pomroy v. Parmlee, 10 Iowa 154. This was before the court on a motion to discharge attached property. Upon the record made, the court below overruled the motion. On appeal to this court, it was found that the court erred in overruling the motion, and the cause was reversed. Procedendo issued, and the defendant moved that the sheriff be ordered to return the property attached and to discharge the same from the writ, in accordance with the decision of this court. The’ judge below was of the opinion that the plaintiff would have a right to introduce and file additional affidavits and have a new trial upon the merits, and therefore overruled the motion. From this, the defendant appealed. It is said that the former opinion settled the whole question; that there was nothing further for the district court to do but to follow the order of this court made upon the record, and that neither party was entitled to a further hear
In the case before us, however, the decision of this court did not determine the controversy between the parties. It simply held that the court erred in discharging the defendant on the record then made, and, so finding, annulled that order and reversed the case.
We think the controversy here is fully disposed of in Gibson v. Hutchinson, Judge, 148 Iowa 139, 141, in which it is said :
“The annulment of the order for Gibson’s discharge did no more than to restore the contempt proceedings to the position they occupied before it was entered, and the district court was clearly within its authority and in the strict line of its duty in assuming jurisdiction to act without reference to such erroneous order.”
In Gibson’s case, he was cited to appear before the district court on a charge of contempt in the violation of a liquor injunction. A hearing was had, and he was discharged. Certiorari issued, and the matter was brought to this court.Upon the hearing here, it was found that the court erred in discharging the defendant, and the order of discharge was annulled. After the- decision of the Supreme Court, annulling the former order discharging the defendant, Gibson was rearrested upon the original charge of contempt, and, upon a retrial before the district court, he was found guilty as charged, and adjudged to pay a fine. To annul this order and fine, the proceedings in certiorari were instituted. In this court, the order of conviction was annulled, on the ground that the evidence taken down upon the trial was not filed'as required by law.
This case fully disposes of the controversy here, and shows that when a writ of certiorari is issued in a particular
