210 N.W. 907 | Iowa | 1926
This is a certiorari to the judgment of the district court of Iowa in and for Polk County, Hubert Utterback, judge. The primary proposition relied upon by petitioner is that 1. JUDGMENT: the trial court was without jurisdiction to record: enter without notice a nunc pro tunc order, amendment presently noted, subsequently to the issuance of without the writ of certiorari by this court, and to notice. amend the return to the writ to show said order.
The historical sequence of facts is as follows: On the 29th day of May, 1925, a decree was entered in the district court of Iowa in and for Polk County, enjoining and restraining the petitioner (Ross Sergio) from maintaining a liquor nuisance. On November 16, 1925, a petition was filed, alleging the violation of said injunction by the defendant, and praying that he be cited and punished for contempt. The defendant was found guilty, and judgment was entered November 28, 1925. On December 24, 1925, upon the petition of the defendant, a writ of certiorari issued, commanding the respondent herein to certify and return, on or before the first day of February, 1926, "a transcript of the records and proceedings, as well as the facts" in said cause. The respondent did file in this court, on January 30, 1926, a return. Subsequently, and on May 1, 1926, an amendment to the return was filed in this court by the respondent, which recited:
"That, on the 30th day of April, 1926, the following order was signed by the undersigned judge and filed for record in the office of the clerk of the district court, Polk County, Iowa, and the same appears in the contempt calendar in the office of said clerk.
"`Now on this 30th day of April, 1926, it appearing to the court that Ross Sergio appeared in open court on the 21st day *715 of November, 1924, in response to a citation for contempt of court; that on said date the defendant Ross Sergio pled guilty to the charge of contempt of court, and that this court set the time for pronouncing judgment for the 28th day of November, 1925, and that, on the said 28th day of November, 1925, a decree was signed by the court and filed, and it further appearing to this court that the notation of the plea of the defendant, Ross Sergio, was not entered in the calendar at the time, it is therefore ordered that this order be entered nunc pro tunc, as of the 21st of November, 1925.'
"Hubert Utterback, Judge."
The petitioner filed in this court a motion to strike from the records the amended return and the respondent's amendment to the abstract filed herein, on the ground that the trial court "was without power, authority, or jurisdiction to enter said order, because said entry was after final judgment, after the term, after the removal of the proceedings to the Supreme Court by certiorari, and without notice to or knowledge of the petitioner herein or any counsel representing him * * *; that the purported order as shown in the respondent's amended return is, in fact, an attempted amendment to the final judgment of the lower court in said cause, the records and proceedings of which were removed to this court by a writ of certiorari."
If the petitioner's motion to strike is sustained, it is apparent, on the face of the original return, that the statutory requirement of a transcript of the evidence upon which the judgment of guilt is predicated, was not respected. When a judgment in a contempt proceeding is founded on evidence, such evidence must be in writing, and filed and preserved as part of the record in the case. Section 12547, Code of 1924.
The record, as shown by the return, is conclusive as to all matters questioned on certiorari. Hatlestad v. Hardin CountyDist. Court,
To determine whether there is a material departure from the statutory rule in this respect, reference must be made to the return of the respondent. Gibson v. Hutchinson,
Clearly, the instant proceeding is an action "founded upon evidence given by others," within the purview of the statute. Section 12547. See Teasdale v. Anderson,
From the early case of Skiff v. State,
"* * * it is made imperative that the particular act done or words spoken in alleged contempt shall be, in substance, preserved in the record, in order that, upon review of the judgment, the appellate tribunal may be put in possession of an accurate history of the case from its inception. A failure to preserve such record we have held sufficient ground for reversing a judgment assessing punishment for contempt."
See, also, State v. Utley,
To adopt any other rule at this time would simply create confusion in our cases. Gibson v. Hutchinson, supra. In brief, the rule of statute defined in Section 12547, Code of 1924, is in plain and unambiguous language, and does not call for judicial construction.
Was the trial court, without notice to the defendant and on its own initiative, legally privileged to enter the nunc pro tunc order after the issuance of the writ of certiorari by this court, and to amend the original return so as to show that a plea of guilty had been entered by the defendant (petitioner herein) in the contempt proceeding? It cannot be questioned that the return of the respondent may be amended to show the facts as established by the record. The record, however, when the return was made, did not disclose the plea of guilty; and without the order in question, which, in legal effect, amended the judgment *717 formerly entered, it is obvious that the writ must be sustained and the judgment annulled.
Section 12463, Code of 1924, reads:
"If the return of the writ be defective, the court may order a further return to be made, and compel obedience to the writ and to such further order by attachment, if necessary."
The original return in this proceeding was not defective. It disclosed the true state of the record, as certified by the shorthand reporter. The trial judge apparently discovered the fatal omission at a subsequent term of court, and subsequently to the issuance of the instant writ, and attempted to cure the situation in the manner indicated.
It is well established law that, after final judgment is entered, and the cause is taken to the Supreme Court for review, the lower court is without jurisdiction to amend its record, without notice to the adverse party. Section 12857, Code of 1924, provides:
"The lower court, the Supreme Court, or a judge of either court, may make any necessary orders to secure a perfect record or transcript thereof, upon a showing by affidavit or otherwise, and upon such notice as it or he may prescribe."
The foregoing provision is a statutory recognition of the power of the trial court to make an entry nunc pro tunc after an appeal is taken, or after some other method is adopted whereby the cause is removed to the Supreme Court for review.
However, in the instant case there was no notice given to the adverse party. This is essential. Prior to the enactment of the statute (Section 12857), a notice was required. Eno v. Hunt,
In Buckwalter v. Craig,
In Hofacre v. City of Monticello,
"If there was no act done, then, of course, there can be no entry nunc pro tunc. If the act was in fact done, but the proper evidence thereof is wanting, it may subsequently be supplied so as to relate back to the time when the act was in fact done."
In the instant case, there is no record of the recited act, as set forth in the amendment, and we cannot presume that the act was done, and therefore predicate the right of the judge, without notice, to make a final entry now for then. There was no opportunity given to the defendant below to join issue on the amended matter, and it must be said that, at the time and under the circumstances the entry was made, the trial court had no jurisdiction to change the original record. See Burnside v. Wand,
170 Mo. 531 (62 L.R.A. 427); Klein v. Southern Pac. Co., 140 Fed. 213; People v. Wilmot,
For the reasons stated, the petitioner's motion to strike from the records in this cause the respondent's amendment to the return to the writ of certiorari must be sustained. It is not contended by the respondent that the return, as originally filed, is sufficient per se. — Writ sustained.
STEVENS, FAVILLE, and VERMILION, JJ., concur.