29 Iowa 330 | Iowa | 1870
Lead Opinion
The basis of plaintiff’s application was, that Tucker’s petition for a new trial, under section 3116 of the Revision, was to be tried “ as other cases, by ordinary proceedings.” Hence, upon testimony in open court or depositions, not upon ex parte affidavits, and that the applicant therefor had no right to demand, nor the justice power to require, a witness to make the proposed affidavit.
Though we should concede'the first part of this proposition, we should still not be prepared to concur in the order discharging the petitioner. As to the nature of these applications for a new trial, however, see Alger v. Merritt,
The law gives to a party the right to apply to a justice, or any officer competent to take depositions, to have affidavits taken. This he does by petition, stating the object for which he desires the same. Eev. 4038. By the sections succeeding it is provided that the officer may issue subpoenas ; take the testimony in the form of affidavits or depositions ; may, in his discretion, require notice to the opposite party or person interested in the testimony, and
The substance of the whole case,' however, is in the thought that the justice had power to issue these subpoenas and to take this party’s affidavit, and the witness had no right by this process to have investigated the legality of that proceeding. A single judge cannot in this method review the order of commitment, nor determine in advance for him, as this witness undertook to do, that the affidavit would not be admissible in a state of case by him supposed.
The witness might as well' have undertaken to decline answering a question because it was leading, or the testimony incompetent, or the like, and thus set at defiance the proceedings and orders of the magistrate. ■ Upon this subject see Platt v. Harrison, 6 Iowa, 79; Ex parte Grace, 12 id. 208; State v. Duffy, 15 id. 425; Printz v. Cheeney, 11 id. 469.
Then we must not forget that the justice was undertaking to punish this witness for a contempt of his authority and orders. He certainly had a right to issue a subpoena, commanding plaintiff to appear. This no
Reversed.
Dissenting Opinion
(dissenting). — This is an appeal from the order of the judge of the circuit court of Monroe county, discharging the plaintiff in a proceeding by virtue of a writ of habeas corpus.
There had been a trial in the district court of the county, and a plaintiff against whom the verdict was rendered, after the adjournment of the term at vrhich the case was tried, had filed his petition for a new trial, according to the provisions of section 3116 of the Revision. When a new trial is sought under the provisions of this section, “ the case shall be tried as other cases by ordinary proceedings.” The plaintiff, in the motion for
In accordance with this petition, the justice summoned John Robb, who refused to be sworn and to make his affidavit of his knowledge of the facts, in relation to which his testimony by affidavit was wanted. Robb was, for this refusal, committed for contempt; and, to be discharged from this commitment, he obtained this writ and was discharged. From the order discharging Robb, there is an appeal to this court. Unless the plaintiff, in the petition for a new trial, could use the affidavit, he was not entitled to have it taken, and the justice could not compel the making of the affidavit.
It is provided by section 4065 in what cases depositions may be taken, to be used on the trial of civil actions, and as the ease in which Robb’s. affidavit was to be used was to be tried as a case by ordinary proceedings, his affidavit could not be used, unless he came within one of the specifications of this section. It is not shown in the habeas corpus proceeding that he did so come. The justice did not, therefore, have jurisdiction to take Robb’s affidavit, and, of course, he could not punish Robb for refusing to make it. The legal conclusion is, that the judge of the circuit court properly discharged the plaintiff, and the discharge should be
Affirmed.