Dempsey v. Alber, 40644.

• Decision Date: 10 April 1931
• Docket Number: No. 40644.,40644.
• Parties: DEMPSEY v. ALBER, CHIEF OF POLICE, ET AL.
• Court: Iowa Supreme Court

212 Iowa 1134

236 N.W. 86

DEMPSEY

v.ALBER, CHIEF OF POLICE, ET AL.

No. 40644.

Supreme Court of Iowa.

April 10, 1931.

Appeal from District Court, Polk County; Jos. E. Meyer, Judge.

The plaintiff commenced this action in certiorari in the district court, to review the action of the defendants, as the Board of Trustees of the Policemen's Pension Fund of the City of Des Moines, in denying her application, as the widow of a member of the Police Department of said city, for relief out of the Policemen's Pension Fund. Upon trial, the district court refused to quash the writ and ordered her name placed on the pension roll. The defendants appeal.

Affirmed.Chauncey A. Weaver and C. R. S. Anderson, both of Des Moines, for appellants.

F. T. Van Liew, of Des Moines, for appellee.

WAGNER, J.

On May 3, 1930, the plaintiff, the widow of J. J. Dempsey, filed with defendants, as the board of trustees of the policemen's pension fund of the city of Des Moines, her application asking for the statutory pension due her as the widow of a member of the police department of said city. She alleges therein that the said J. J. Dempsey was a police officer of said city in the sanitary division, and that his death occurred January 13, 1930, while in the service of said city; that her husband was a police officer in said city more than five years, his service having begun about May 1, 1912, in the department of public safety. A hearing was had before said board, which found as facts that J. J. Dempsey, whose death occurred on the date aforesaid, was secretary of the health department; that the records fail to disclose that he ever made any formal application for a policemen's pension, or that the police department ever certified his name for record upon the roll of police department pensioners; that he never contributed any portion of his salary as secretary of the health department to the policemen's pension fund; and held that said board is without power or jurisdiction to grant the pension prayed and dismissed the application.

On June 27, 1930, the widow commenced this action in certiorari, in the district court, to review the legality of the action of the defendant board in the premises. A writ of certiorari was issued, and the defendant board made due return to the writ, and upon trial the district court refused to quash the writ, annulled the action of the board of trustees in denying and dismissing her application for a pension, and ordered that the board of trustees proceed to correct their records, so that they will show an order duly entered thereon, allowing said pension and approving her application from and after January 13, 1930, in the sum of $30 per month, the amount due her as the widow of J. J. Dempsey, a member of the organized police department of said city. From this action by the district court, the defendants have appealed.

[1] At the hearing before the appellant board, it was orally stipulated and agreed by all of the parties that any evidence might be offered by way of affidavit of any witness, and that the said board should receive said affidavits as the evidence on behalf of any party, “subject to any legal objections,” and in accord therewith, the plaintiff introduced in evidence three affidavits, which were certified by the board to the district court in the return to the writ. No objection to the introduction in evidence of said affidavits was made at said hearing. Under section 12464, Code 1927, the court must proceed to hear the parties upon the record, proceedings, and facts as certified, and such other testimony, oral or written, as either party may introduce. At the trial in the district court, the appellee reoffered in evidence said three affidavits, to the introduction of which objection was made. The court made no ruling upon the objection and no exception was taken. Later, during the trial, the appellants moved to strike said affidavits, and again no ruling was made by the court and no exception taken. The appellants now complain that the court erred in the aforesaid particulars. Under the record, as made, the appellants are barred from urging same as a ground for reversal. The affidavits were received in evidence by the inferior tribunal under the aforesaid agreement of the parties and constituted a part of the record certified to the district court. The abstract of the appellant shows that no rulings relative to the matters about which complaint is now made were made by the court, and the abstract does not show any exception. Since no rulings were made and no exceptions taken and preserved relative to the introduction in evidence of said affidavits, the matter cannot be reviewed on appeal to this court. See Campfield v. Rutt (Iowa) 235 N. W. 59, and cases therein cited.

[2][3][4] The appellants do not question the right of the appellee to have her rights determinedby certiorari. That certiorari is the proper remedy, see Riley v. City of Des Moines, 203 Iowa, 1240, 212 N. W. 716, and Gaffney v. Young, 200 Iowa, 1030, 205 N. W. 865. The appellants, relying upon Tiedt v. Carstensen et al., Supervisors, 61 Iowa, 334, 16 N. W. 214, 215, contend that section 12456 et seq., Code 1927 (the statutes relative to the proceeding by certiorari), do not contemplate that decisions of inferior tribunals upon questions of fact may be reviewed by the writ of certiorari. This may be conceded. As stated in the cited case, “It is not the purpose of the statute to change the office of a certiorari, so that it will operate as an appeal, wherein causes may be tried de novo.” Also see McEvoy v. Cooper, 208 Iowa, 649, 226 N. W. 13. But if no discretion is conferred upon the inferior tribunal, that is, if the action to be taken by the inferior tribunal upon the facts as found, or upon undisputed facts, is mandatory and...