Coffey v. Gamble
| Citation | 91 N.W. 813,117 Iowa 545 |
| Parties | THEODORE COFFEY AND W. L. BATTIN, Plaintiffs, v. JAMES D. GAMBLE, Judge, Defendant |
| Decision Date | 13 October 1902 |
| Court | United States State Supreme Court of Iowa |
ACTION of certiorari to review certain proceedings wherein plaintiffs were adjudged guilty of contempt.--Annulled.
Judgment ANNULLED.
Frank B. Wilson and J. G. Culver for plaintiffs.
Hager & Haddock and H. J. Chapman for defendant.
W. B Burget brought action against the town of Greenfield to restrain it from doing certain work on the streets of the town in front of his (Burget's) property. A temporary writ of injunction was issued as prayed, without notice which was duly served on the defendant town. Thereafter the case was tried on its merits at the regular September, 1901 term of the Adair county district court, and taken under advisement by the presiding judge, the Honorable J. H. Applegate; "the decree, by agreement, to be entered in vacation as of the date of the filing of the same with the clerk." Thereafter, and on the 2d day of October, 1901, the said trial judge wrote out and caused to be filed with the clerk of the Adair county district court, a written opinion and decision, which concluded as follows: "I reach the conclusion that the temporary injunction granted in this case should be dissolved, and that plaintiff's petition should be dismissed on its merits." To all of which the plaintiff at the time duly excepted. Learning of this order, plaintiffs herein, who are and were members of the town council of the town of Greenfield, directed the street commissioner to proceed with the work in front of Burget's property, which they undertook to do, and continued therein until October 5th, when one of the judges of this court made an order, the material parts of which are as follows: On October 7th a formal decree, signed by Judge Applegate, dismissing Burget's petition, was filed in the office of the clerk of the Adair county district court; and on the same day Burget served on the town notice of the aforesaid order made by one of the justices of this court. On the 8th, Burget gave notice of appeal to this court, and filed the bond required of him by the aforesaid order. On the 10th day of October the parties appeared before one of the justices of this court, when a final order was made as follows: "It is ordered that the original injunction heretofore issued in this case be, and it is hereby, revived and continued in full force and effect in all its provisions in so far as the sidewalk along and in front of the west side of plaintiff's property is concerned, and including all that part of the street embraced between plaintiff's lot line and the curb line, being twelve feet in width along the west side of plaintiff's property; and, in regard to this part of said street, said injunction is revived and continued on condition that plaintiff shall file a bond in the sum of $ 500 within five days from this date." Affidavits were then filed charging plaintiffs herein with contempt in violating the temporary writ of injunction issued on Burget's petition against the town, and on hearing before the defendant herein they were adjudged guilty, and each sentenced to pay a fine and costs. This certiorari proceeding is to review the action of the defendant in adjudging plaintiffs guilty of contempt. No claim is made that plaintiffs have violated any order or mandate issued by this court, or by any of the judges thereof; and, aside from some incidental questions to be hereafter noted, the main contention is that they violated the original temporary injunction, in instructing the marshal and street commissioner on October 4th to proceed with their work upon the street in front of Burget's property.
Granting that the original writ was properly issued, the question remains, when, if ever, was it dissolved? On the one side it is contended that, in view of the orders made by one of the justices of this court, there never was a time, from the issuance of the original writ down to the present, when the temporary injunction was not in force; while on the other it is insisted that the injunction was in fact dissolved on October 2, 1901, and was not revived until October 8th, or at least not before October 5th, when the first order was made by one of the judges of this court, and that what was done by plaintiffs on October 4, 1901, was lawful, and not in contravention of the restraining order issued in the main case. The solution of this sharply defined issue rests upon the effect to be given the decision and opinion of Judge Applegate filed on October 2, 1902.
But preliminary to a determination of that question there is a point which is presented for our consideration that must be disposed of. Plaintiffs herein, through their attorney offered to show certain conversations had by the attorney with Judge Applegate with reference to his decision in the main case, to the effect that he had dismissed plaintiff's petition and dissolved the injunction, that no formal decree was necessary, and that his clients might proceed with their work in and upon the street without violating the injunction. Under our practice there is no distinction, in form or manner of entry, between a judgment and a decree; but there is a manifest difference between a mere opinion and a decision. The former is a statement given by the court for its conclusions, while the...
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