Fisher v. Dist. Court of Cass Cnty.

• Decision Date: 10 September 1888
• Citation: 39 N.W. 283,75 Iowa 232
• Parties: FISHER v. DISTRICT COURT OF CASS COUNTY ET AL.
• Court: Iowa Supreme Court

75 Iowa 232

39 N.W. 283

FISHER

v.DISTRICT COURT OF CASS COUNTY ET AL.

Supreme Court of Iowa.

September 10, 1888.

Certiorari to district court, Cass county; C. F. LOUFBOUROW, Judge.

This is a proceeding in certiorari by which it is sought to reverse the order and judgment of the district court of Cass county in an alleged contempt of said court in violating an injunction issued in an action to restrain and abate a nuisance. The plaintiff was held in contempt, and a fine of $500 was adjudged against him.L. L. Delano, for appellant.

A. J. Baker, Atty. Gen., and John W. Scott, Co. Atty., for defendant.

ROTHROCK, J.

The record shows that an action for injunction was commenced by R. Hudspeth against the defendant, and that a writ of injunction was issued on the 10th day of May, 1885, and served on the plaintiff on the 16th day of the same month. On the 31st day of January, 1887, a motion was filed asking for an order on the plaintiff to show cause why he should not be punished for contempt of the court in violating said injunction. It was alleged in this motion that plaintiff had been guilty of repeated violations of the writ. The motion was entitled in the name of “The State of Iowa vs. E. G. Fisher,” and it was supported by the affidavit of one Bonesteel; and a duly authenticated copy of the injunction and of the service thereof upon said Fisher were attached to and made part of the affidavit. A precept was issued, and Fisher was brought before the court to answer to the charge. He filed a motion to quash the proceeding, because the complaint for a violation of the injunction was not made by Hudspeth, the plaintiff in the action for injunction, but by one Bonesteel, who is not shown to have any interest in said original action wherein the injunction was granted. Thereupon the said Bonesteel filed another affidavit, in which he averred that he was a citizen of Cass county, and that Hudspeth had become a non-resident of the state of Iowa, and said Bonesteel in said motion claimed the right as a citizen of the county to demand that defendant be punished for violating the injunction. At the same term of court, Hon. John W. Scott, county attorney, appeared and filed a motion to permit and direct the cause to proceed in the name and interest of the state of Iowa, and that the defendant therein be tried and dealt with, and, if found guilty, punished as provided by law. The defendant filed a motion to strike out the additional affidavit of Bonesteel, and the motion of the county attorney. The motion to strike out was overruled. It appeared on the hearing of this motion that Bonesteel became naturalized as a citizen some two or three...