Geneva v. Thompson

• Decision Date: 15 December 1925
• Docket Number: 36163
• Citation: 206 N.W. 132,200 Iowa 1173
• Parties: FRANK GENEVA, Petitioner, v. LESTER L. THOMPSON, Judge, Respondent
• Court: Iowa Supreme Court

206 N.W. 132

200 Iowa 1173

FRANK GENEVA, Petitioner, v. LESTER L. THOMPSON, Judge, Respondent

No. 36163

Supreme Court of Iowa, Des Moines

December 15, 1925

Certiorari to Polk District Court.--LESTER L. THOMPSON Judge.

WRIT of certiorari to Lester L. Thompson, judge of the district court of Iowa, in and for Polk County, to review a judgment entered against the defendant in a contempt proceeding in said court.--Annulled.

Certiorari sustained, and order annulled and set aside.

E. S Thayer, for petitioner.

Vernon R. Seeburger, County Attorney, and Russell Jordan, Assistant County Attorney, for respondent.

ALBERT, J. EVANS, STEVENS, DE GRAFF, and MORLING, JJ., concur.

OPINION

ALBERT, J.

On the 19th of September, 1923, an information was filed before the above named respondent, one of the judges of the district court of Iowa in and for Polk County, charging that the petitioner was guilty of contempt of court for selling or keeping for sale intoxicating liquors, in violation of permanent injunction formerly entered in said court. The matter came on for trial before the above named district judge on the 13th of October, 1923, and after a hearing of the testimony, the defendant was found guilty of contempt and ordered to pay a fine of $ 1,000, together with costs. It is to review the order of the aforesaid court that this proceeding is instituted.

It appears that, on the 28th day of November, 1917, the county attorney of Polk County, Iowa, filed a petition to enjoin a nuisance. The title of the petition was, "State of Iowa, Plaintiff, vs. Frank Genero, Arthur Johnson, Defendants." Throughout the petition the defendant in the action was designated as Frank "Genero." An original notice was issued, bearing the same designated title, and directed to Frank "Genero" and Arthur Johnson. This notice was served by the then sheriff of Polk County, a part of which notice reads as follows:

"I personally served the same on the within named defendant Frank Genero by offering to read the original to Frank Genero which he waived," etc.

Under date of April 24, 1918, a decree was entered, as follows:

"State of Iowa v. Frank Geneva or Frank Genero, Arthur Johnson."

The decree recites, inter alia:

"Defendants Frank Geneva and Arthur Johnson appeared not."

It finds that Frank Geneva "kept and carried around on his person certain intoxicating liquors with intent to sell and dispose of the same in violation of law," and that:

"Frank Geneva and Arthur Johnson should be perpetually enjoined, as prayed * * *. It is therefore ordered, adjudged, and decreed that the said defendant Frank Geneva and Arthur Johnson be and he is hereby perpetually enjoined from keeping or carrying around on his person any intoxicating liquors with intent to sell or dispose of the same by gift or otherwise in violation of law, and from selling or otherwise trafficking in intoxicating liquors in Polk County, Iowa, or elsewhere in the state of Iowa, in violation of law."

It will be noted that in the foregoing proceeding the information and the original notice were entitled "State of Iowa v. Frank Genero," and the original notice was directed to Frank Genero, and service was made on Frank Genero. The decree, as noted above, was by default; but in the decree the name of Frank "Geneva" appears for the first time in this proceeding, as shown by the record. This gives rise to the first question urged as error.

The petitioner urges that there was no valid injunctional decree in the first instance, and that, whatever he may have done he could not be...