Elsner v. Shirgley

Decision Date12 May 1890
Citation80 Iowa 30,45 N.W. 393
CourtIowa Supreme Court


Appeal from district court, Jackson county; C. M. WATTERMAN, Judge.

The plaintiff was indicted before the district court of Jackson county for the crime of keeping and maintaining a nuisance, under the law for the suppression of intemperance, and convicted on his plea of guilty. The court “thereupon sentenced the defendant to pay a fine of $300 and costs, including an attorney's fee of $50, to be taxed with the costs,” and gave judgment therefor. It also decreed the judgment a lien upon the premises described in the indictment, including the “fixtures, urniture, vessels, and all movable property used in and about the premises, in carrying on the said unlawful business set out in the indictment.” The judgment also provides that a special execution shall issue for the sale of said property, and that a general execution shall issue for any unpaid balance. It again provides that, “if the said defendant shall fail to pay said fine, costs, and attorney's fee, the clerk shall issue a warrant of commitment for the defendant, and he shall stand committed, and be imprisoned in the county jail, at hard labor, until said fine and costs are paid.” In pursuance of said judgment, the plaintiff was committed to the jail of Jackson county, and he brings this action, habeas corpus, to test the legality of his imprisonment. The writ was issued by the district court of Jackson county, and upon the hearing it remanded the plaintiff to the custody of the defendant, for imprisonment by virtue of the judgment. From such order the plaintiff appealed to this court.Hayes & Schuyler and D. A. Wynkoop, for appellant.

John Y. Stone, Atty. Gen., and J. Hilsinger, Co. Atty., for appellee.


1. The plea of guilty and judgment were entered at the June term of court, 1889. At the October term, 1889, on motion of the county attorney, without notice to the defendant, (plaintiff herein,) the court corrected its entry of judgment made at the June term, as follows: “The imprisonment herein provided for not to continue longer than one day for each three and one-third dollars of the fine and costs unpaid.” It is urged that this correction at a subsequent term, without notice, absolutely avoids the judgment. This position cannot be sustained. The most that can be said of the action of the court in making the correction without notice is that the act was void. It is not as it would be in a case where a party to a judgment, and with control of it, had sought such action; for, in such a case, he would have power to avoid the judgment, and the result would only operate against him. In the criminal case the attorney could not control the judgment in such a way, and an order made at his instance, without jurisdiction, would simply be without effect,--void. Such a ruling is consistent with a fair administration of justice and the rights of all parties. To avoid a judgment for such a cause would be to defeat the ends of justice on the merest technicality. The authorities cited by appellant only hold that the entry unauthorized is void. They do not go to the extent claimed.

2. It is said that the judgment is void because it fails to fix the time the plaintiff should be imprisoned. Viewing the judgment as originally entered, can its correctness be questioned in a proceeding by habeas corpus? The statute regulating this proceeding, after defining what may be presented by answer and reply, provides: Sec. 3483. But it is not permissible to question the correctness of the action of the grand jury in finding a bill of indictment, or of the trial jury in trial of a cause, nor of a court or judge when acting within their legitimate province, and in a lawful manner.” Was the district court, in the proceeding in which the judgment was entered, acting within its legitimate province, and in a lawful manner? If so, its action cannot be questioned in this proceeding. The judgment, at best, was but erroneous, and the error could have been corrected by appeal, like any other erroneous judgment in a criminal case. The only adjudication relied upon to support the view that the judgment is void because of a failure to specify the time of imprisonment is Ex parte Tuicher, 69 Iowa, 394, 28 N. W. Rep. 655. The case does not in terms hold such a judgment void, nor is such a conclusion necessarily deducible from the language used. In that case a judgment was entered as in this case, and the party was imprisoned beyond the term permitted by the law. This court held that the law requiring the time to be fixed in the judgment was mandatory, and it discharged the prisoner. Of course, an imprisonment beyond the time the court could have fixed under the law was illegal, but it by no means appears that, within the limits of the court's discretion, its judgment in a proceeding of this kind would have been held void because of an error in not entering such a judgment as the law contemplates.

It cannot be said the court was not acting in a lawful “manner,” in the sense in which the word “manner” should be understood. If it is to be understood that a court is acting in an unlawful manner, within the meaning of the statute, when it commits a reversible error, then the restrictions as to questioning the actions of the court are of no avail, for habeas corpus would lie for errors in the admission of testimony, or in giving or refusing instructions, and the word “manner,” if given its most comprehensive meaning, would include such actions. But we well know that such is not the design of the law. “Manner” has reference to the method or mode of acting, more than to the degree of perfection or correctness in the conclusion or results arrived at. The statute seems to have a reference to the methods or means of obtaining results, and if a court observes such methods or means it may be said to be acting in a lawful manner, although it may err in the application of legal principles to such an extent as to involve reversible error. It is not, of course, to be understood that a court has acted in a lawful manner when the judgment it pronounces is absolutely void, for such a judgment has no support in the law. Neither the law in its substance nor “manner or form” can aid it. But if it is merely voidable it has support until set aside in a proper proceeding. The court in that proceeding had jurisdiction of the subject-matter and of the person. It had the right to impose a fine, and provide for imprisonment until the fine was paid. In so doing it could not make the imprisonment...

To continue reading

Request your trial
9 cases
  • Hovey v. Sheffner
    • United States
    • Wyoming Supreme Court
    • January 20, 1908
    ... ... is absolutely void, since such a judgment would have no ... support in law. ( Elsner v. Shrigley, 80 Iowa 30, 45 ... N.W. 393.) ... This ... court has adopted the liberal view sustained by the later ... authorities that ... ...
  • Lee Lim v. Davis
    • United States
    • Utah Supreme Court
    • December 31, 1929
    ... ... the term of the imprisonment may be ascertained by reading it ... in connection with the statute under which it is imposed ... Elsner v. Shrigley, 80 Iowa 30, 45 N.W ... 393; In re Hamilton, 188 Mich. 499, 154 N.W. 567 ... The ... defendant contends that, as the ... ...
  • State ex rel. Petcoff v. Reed
    • United States
    • Minnesota Supreme Court
    • July 20, 1917
    ... ... reading it in connection with the statute under which it is ... imposed, it will be sustained. Elsner v. Shrigley, ... 80 Iowa 30, 45 N.W. 393; In re Hamilton, 188 Mich ... 499, 154 N.W. 567 ...          The ... suggestion is made that ... ...
  • Ex parte Tani
    • United States
    • Nevada Supreme Court
    • July 30, 1907
    ...is a remedy by writ of error or appeal; but in rare and exceptional cases it may be issued, although such remedy exists." Elsner v. Shrigley, 80 Iowa, 35, 45 N.W. 393: "In Jackson v. Boyd, 53 Iowa, 536, 5 N.W. 734, it expressly stated that a failure to fix the time in the judgment 'would no......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT