Porter v. Butterfield

Feb 14, 1902
Reporters:
,
Before:
Deemer
Deemer, J. —

1 Several motions are presented which must •be disposed of before Ave go to the merits. On application to the district court, after the appeal Avas taken, the record was corrected as to a matter material on this appeal. No appeal seems to have been taken from that ruling, but appellants herein have filed amotion to strike an amendment to’ the abstract setting forth the record as corrected. This, motion is without merit, and will be overruled. The trial court had jurisdiction to correct the record even after an appeal to this court. Barber v. Scott, 92 Iowa, 57. As no appeal was taken from the ruling, we cannot determine the correctness of the conclusion reached.

*728 2

‘3 *727Appellees move to dismiss for the reason that the find*728ings made by tbe jury aud by tbe; trial court are not appeal-able orders; that all matters involved in this appeal were disposed of in. Butterfield v. Treichler, 113 Iowa, 328; and for the further reason that by prosecuting their certiorari proceedings appellants elected to. waive their appeal. This motion must also be overruled. True, the right of appeal is purely statutory, in the absence of constitutional guaranties, but the statute expressly gives the light of appeal from final orders in special actions affecting substantial rights (Code, ‍​‌‌​​​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌​​​‌​​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​​​‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​‌‌​‌​‌‌‌​​​​‌‌​​‍section 4101), and provides that the supreme court has appellate jurisdiction ■over all judgments and decisions of all courts of record, •except as otherwise provided by law (Code, 4100). The certiorari proceeding simply involved the jurisdiction .of the district court, and in the case referred to we expressly refused to pass on other questions. The points involved on this appeal were ■not disposed of in the certiorari proceedings, except in so far as they relate to the question of jurisdiction. The doctrine of election of remedies does not apply, for the reason that certiorari and appeal are not necessarily inconsistent remedies. The rule is well stated in Kearney Milling & Elevator Co. v. Union Pac. Ry. Co., 97 Iowa, 723, as follows: “A. man may not take two contradictory positions; and where he has a right to choose one of two means of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate choice of one will preclude him thereafter from going back and’ electing the other.” Applying it to this case, we do not think the remedies of certiorari and appeal are so inconsistent as that the assertion of one involves the negation or repudiation of the other. True, certiorari will not ordinarily lie where there is a remedy by appeal, and when the party has a right of appeal he cannot proceed by certiorari. The writ of certiorari is never used to correct a mere error, but to test the jurisdiction .of the tribunal or the legality of its action. State *729v. Roney, 37 Iowa, 30. True, when one pursues the remedy of certiorari, he denies the jurisdiction of the court or the legality of its action, and where he appeals he in effect, impliedly, at least, admits the jurisdiction of the tribunal from whose decision he appeals, although it. seems-he may even on appeal question the jurisdiction. Petty v. Durall, 4 G. Greene, 120. But in suing out the writ he by no means affirms -that the rulings made by the trial court during the progress of the trial were correct. As the remedies are not, therefore, inconsistent, there was no •election and the motion to dismiss is overruled. As sustaining our conclusions to some -extent at least, see Smith v. Bricker, 86 Iowa, 285; Wheeler Manufacturing Co. v. Carty, 43 N. J. Law, 336 (21 Atl. Rep. 851).

4

*7305 *729II. Turning now to the merits, we have first the -ruling on defendants’ objections to a trial by jury. In Green v. Smith, 111 Iowa, 183 (decided after this case -was tried in the ‍​‌‌​​​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌​​​‌​​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​​​‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​‌‌​‌​‌‌‌​​​​‌‌​​‍district court), we held that these proceedings were not triable by jury. Something is said in that case, it is true, to the effect that trial by jury is not. an absolute right, and counsel for appellees suggest that, although not an absolute right, yet the trial court, in its discretion, could “order it so tried; and that, in any event, no prejudice resulted, because the trial -court adopted and sustained the findings of the jury. Admitting the correctness of the quotation from the Smith opinion, we are nevertheless constrained to hol‘d that trial to a jury in such cases is neither a right nor a privilege. ‘The statute in express terms says that “issues of fact in all ordinary actions must be tried by jury; * * * all -other issues shall be tried by the court.” Oode, section 3650. Reference to a jury to enlighten the conscience • of the court is no longer permissible under our practice. The section conferring that power last appearing in the Rewision of 1860 was repealed by.the Oode of 1873, and the -section which we have quoted substituted in lieu thereof. *730Defendants were entitled to the untrammeled and unbiased opinion of the court upon the issues joined, and’ the trial judge was in error in ordering any of the issues submitted to a jury. These views find support in Hobart v. Hobart, 51 Iowa, 512. There is no merit in the suggestion that the trial court adopted the findings of the jury, and therefore no prejudice resulted. That suggestion is disposed of in the Hobart Case when it was first before us. See 45 Iowa, 501. This alone is sufficient to dispose of the case, but, as it must be remanded for a new trial, it is deemed advisable to indicate our views on other questions presented, which may arise upon a -retrial.

6 III. Appellants contend that the voters who cast their ballots at the last general election preceding the filing of the statements of consent may only be ascertained from the poll boohs, and that in the instant case the trial court was in error in permitting plaintiffs to produee and admit an almost innumerable number of witnesses whose names were on the statements of consent to testify that they voted at the general election under a somewhat different name. The Code provides that these statements of consent shall be signed by a certain, percentage of the voters (depending on the size of the locality) who voted at the last preceding election, as shown by the poll ‍​‌‌​​​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌​​​‌​​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​​​‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​‌‌​‌​‌‌‌​​​​‌‌​​‍list of said election. Code, sections 2448, 2449,. The poll list is thus made the only and exclusive evidence as to who voted in the particular localities. Therefore, if it transpires that B. W. Sweet signed a statement of consent, and that Dayton Sweet was the only person having the surname of Sweet who voted at the last preceding election as shown by the poll books, B. W. -Sweet’s name should not be counted. The legislature had power to make rules of evidence for these proceedings, and these rules so mad‘e must be observed by the courts. As the poll Book‘s are made the only and exclusive evidence by which to de*731termine wlio voted at any preceding election, parol evidence that one who signed a statement of consent in fact voted at a preceding election, although under a different name from that appearing on the poll books, is inadmissible. True, there may be cases, of course, where parol evidence would be admissible for the sole purpose of identification; as, where there were two John Smiths who voted at a general election as shown by the poll books, one of whom only signed the statement of consent. In such a case, and perhaps in some others, jiarol evidence might’ be admitted solely for the purpose of identification. But where, as we have said, the name on the statement of consent is entirely different from that appearing on the poll books, parol evidence is not admissible for the purpose of showing that the man who signed the statement of consent in fact voted at the preceding general election, although under a somewhat different name. Any other rule would open the door for fraud and perjury, and we cannot guard too strongly these provisions of the mulct law, which were carefully framed by the legislature with a view to minimizing the evils resulting from the presence of saloons. Generally speaking, the names appearing on the statements of consent and the poll list must be identical. Of course, initials may be used for the given name in either case, but as a rule, where initials only are used, they should be the same in each ease. The middle initial or name is often disregarded, for, as a rule, it is not regarded as part of a name. Hendershott v. Thompson, Morris, 186. The use of initials, whether vowels or consonants, as and for a. given name, is so common that we should take judicial notice thereof But when one uses his initials in ‍​‌‌​​​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌​​​‌​​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​​​‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​‌‌​‌​‌‌‌​​​​‌‌​​‍signing a statement of consent the same initials must appear on the poll list, for the initials so used are treated as the Christian or given name. Thus “C. E. Jones” is not “E. C. Jones,” “Musto Van Meter” is not E. M. Van Meter,” nor is “M. N. Jordan” “N. E. Jordan, nor “W. E. Geller” “W. C. Gel*732ler,” nor “R. P. O’Neill” “Rev. Patrick O’Neill.” But “Aaron J. Boge” and “Aaron Jordon Boge” are the same. We might go on with further illustrations, but these will suffice to indicate the rules to be applied. Some of these names and initials are taken from actual cases, as, will be observed from a reference to the following: Burford v. McCue, 53 Pa. 427; McMinn v. Whelan, 27 Cal. 300; Bogue v. Bigelow, 29 Vt. 179; Carpenter v. State, 8 Mo. 291; Hunt v. Stewart, 7 Ala. 525; Kennedy v. Merriam 70 Ill. 228; Fewlass v. Abbott, 28 Mich. 270; Tweedy v. Jarvis 27 Conn. 45; Perkins v. McDowell, 3 Wyo. 328 (23 Pac. Rep. 71) ; Breedlove v. Nicolet, 7 Pet. 413 (8 L. Ed. 731) ; Bratton v. Seymour, 4 Watts, 329; Stewart v. Colter, 31 Minn. 385 (18 N. W. Rep. 98). That there may be no mistake regarding the rule to be applied, we. may also say that judicial notice will be taken of the ordinary and commonly used abbreviations and equivalents for Christian names. Thus “Wm.” and “William” are the same, and so are “Jo.” and “Joseph,” “Th.” and “Thomas,” and so on. Com. v. O‘Baldwin, 103 Mass. 210; Inhabitants of Shelburne v. Inhabitants of Rochester, 1 Pick. 470; Ogden v. Gibbons, 5 N. J. Law, 518; Walter v. State, 105 Ind. 589 (5 N. E. Rep. 732). With these rules for our guide, it is apparent that the trial court was in error in its rulings on the admission and rejection of evidence and in the giving of instructions with reference to identity of names.

*7337 *732IV. Ilnder Code, section 2450, it was the duty of the board of supervisors and of the trial court on appeal to canvass the statements of consent, and to find and enter of record the result in the county and in the various town.^ and townships therein. It appears that Mechanicsville is an incorporated town situated partly in Pioneer township and partly in Eremont township, in Cedar county. Stanwood, is another town in Eremont township, at which place some of the electors living in Mechanicsville voted. Lowden, Ben-*733net, Durant and Stauwood are also incorporated towns in said county. The trial court aidlnitted testimony tending to show where the various voters resided for the purpose of showing the number of voters in each particular town. The ‍​‌‌​​​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌​​​‌​​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​​​‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​‌‌​‌​‌‌‌​​​​‌‌​​‍statute does not prescribe the method by which the board or the court is to find the result in the various towns and townships, and, unless this matter is required to be entered on the poll list or some other boohs or documents, resort must of necessity be had to the next best evidence obtainable. The poll lists did not show in what town the voters resided, and there is no requirement of law that they should show it. See Code, sections 1132, 1144, 1145. The testimony as to the residence of these voters was therefore properly received.

8 Y. Defendants’ motion to retax costs need not be considered at this time. Their contention that no costs should be taxed to the objectors in any event is without merit. Section 2450 of the Code expressly provides that costs in‘all cases of appeal shall be taxed against the losing party. Whether or not some of the costs made by petitioners should have been retaxed on defendants’ motion, we do not now decide, as the case must be retried, and the matter of costs may then be determined by the trial court.

For the errors pointed out, the findings of the jury and the order and judgment of the trial court are reversed.