Blunk v. Walker

• Decision Date: 14 December 1928
• Docket Number: 39414
• Citation: 222 N.W. 358,206 Iowa 1389
• Parties: DONALD J. BLUNK, Plaintiff, v. W. M. WALKER, Judge, Defendant
• Court: Iowa Supreme Court

222 N.W. 358

206 Iowa 1389

DONALD J. BLUNK, Plaintiff, v. W. M. WALKER, Judge, Defendant

No. 39414

Supreme Court of Iowa, Des Moines

December 14, 1928

Certiorari to Wapello District Court.--W. M. WALKER, Judge.

Original proceedings in certiorari, to test the jurisdiction of the respondent court in entering an order and judgment punishing the petitioner for contempt of court. The opinion states the facts. The judgment entered is modified, and the writ annulled.

Judgment modified, and writ annulled.

Roberts & Roberts, for plaintiff.

Jaques Tisdale & Jaques, for defendant.

DE GRAFF, J. STEVENS, C. J., and EVANS, FAVILLE, and WAGNER JJ., concur.

OPINION

DE GRAFF, J.

This case involves original proceedings in certiorari in this court. The primary contention of the appellant (petitioner below) is that the respondent court did not have authority or jurisdiction to enter the judgment which was entered on said hearing. In brief, the appellant contends that the jurisdiction to enter said judgment must be predicated on the provisions of Chapter 535 (Section 12533 et seq.), Code of 1924, and not, as contended by the respondent, on the provisions of Chapter 536, Code of 1924. Before turning the searchlight upon these respective contentions involving the interpretation of statutory provisions, it may be well to visualize the factual setting.

The petitioner, Donald J. Blunk, is the husband of Glendora Blunk. On March 17, 1928, the wife, Glendora, filed her petition praying a divorce from Donald J., alleging cruel and inhuman treatment. In said petition she also asked that a temporary writ issue, restraining the defendant from, in any manner, selling, incumbering, or disposing of any of the household goods, or from, in any manner, interfering with the peaceable possession of the homestead occupied by the plaintiff, or from, in any manner, interfering with the plaintiff, pending the hearing of the cause. The restraining order as prayed was issued, and, on March 19, 1928, Donald J. Blunk was duly and legally served with notice.

On the 31st day of May, 1928, there was filed in the district court of Iowa in and for Wapello County an information and affidavit for contempt, in which are alleged the issuance of the restraining order of date March 19, 1928, and the service upon the defendant, Donald J. Blunk, of said order, a copy of which was attached to said information. It is further alleged therein that, on the night of May 30th, or the early morning of May 31, 1928, the defendant, Donald J. Blunk, willfully violated said injunction, by interfering with the peaceable possession of the plaintiff of the premises in question, and that the defendant came to the said residence, broke down the door of the room wherein plaintiff was sleeping, and took the plaintiff by the hair of the head, pulled her out of bed, and dragged her by the hair of her head into another room, and then threw her clothes in after her.

It is further alleged that said actions on the part of the defendant, Donald J. Blunk, constitute a violation of the restraining order in two respects: (1) In interfering with the peaceable possession of the premises, and (2) in interfering with the plaintiff, pending the hearing of this cause.

The petition in contempt prayed that a warrant issue for the arrest of the defendant for contempt of court, and that a time be fixed within which the defendant file a showing in relation to said actions, and purge himself of such contempt, if possible, and that, upon such hearing, the court inflict such punishment upon the defendant as is proper under the circumstances. An order of citation was ordered, and a warrant issued. The defendant was arrested, and released under bond. He promptly filed his resistance to said application. The resistance was in the nature of a general denial, and also contained the allegation "that the building referred to was the home of plaintiff and defendant, bought and paid for entirely by this defendant [petitioner]; that, after plaintiff had abandoned the premises, the defendant took possession thereof, for the purpose of preserving the property; and that he selected for his own use only one bedroom, leaving all the rest of the house free to the plaintiff."

On June 5, 1928, he appeared in response to the contempt proceeding. On that date, the court heard the evidence on both sides. The hearing was recorded by the official shorthand reporter in said court. Upon the conclusion of all the evidence, the record discloses the following:

"Mr. Roberts: Defense rests. 1:15 P. M.

"The Court: Both sides rest. 1:15 P. M.

"Mr. Jaques: We waive the opening argument.

"The Court: I am not sure I want to hear an argument on it, gentlemen. The only punishment I can give him is under this section of the statute. Gentlemen, the order will be, this man will be found guilty of violating this injunction, and his punishment will be one day in the county jail and $ 50 fine, and upon nonpayment of that fine, he will be confined in jail at the rate of three and one-third dollars per day for every day in jail."

Thereafter, on the same date, the court signed a judgment and record entry in keeping with said order, and providing also: "To all of the above findings, order, sentence, and judgment, the defendant at the time excepts."

The trial court, in conformity to the statute, also made findings, as part of the judgment and record entry, as follows,-- after reciting the issuance of the writ and its service:

"The evidence further shows that, on the night of May 30, 1928 the defendant went to said home, and, after demanding admittance to the bedroom where the plaintiff was sleeping, broke down the door, entered the bedroom, took hold of plaintiff's hair, and dragged her out of the bed onto the floor, then dragged her out of the room down the hall, and into another bedroom; also that he called her vile, indecent, and insulting names. The defendant denies, to some extent, the charges made, but he admits that he pulled her hair, and admitted it in the presence of the policemen who went to the house directly thereafter with plaintiff, to get her clothing, and emphasized the admission with an oath, that he had dragged her out of bed by the hair. The charges made against the defendant...