Hall v. Wheeler

• Decision Date: 22 June 1923
• Docket Number: No. 35464.,35464.
• Citation: 194 N.W. 268,196 Iowa 100
• Parties: HALL v. WHEELER, JUDGE OF DISTRICT COURT.
• Court: Iowa Supreme Court

196 Iowa 100

194 N.W. 268

HALL

v.WHEELER, JUDGE OF DISTRICT COURT.

No. 35464.

Supreme Court of Iowa.

June 22, 1923.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Proceeding in certiorari to test the validity of orders made by respondent court. Facts appear in the opinion. Writ sustained in part and annulled in part. Sustained in part and annulled in part.John P. Tinley and Verne Benjamin, both of Council Bluffs, for appellant.

Frank E. Northrop, of Council Bluffs, for appellee.

ARTHUR, J.

On June 19, 1917, in an action begun in the Pottawattamie district court wherein the state of Iowa was plaintiff and A. S. Hall, petitioner in the instant case, was defendant, the court found that A. S. Hall “was engaged in the unlawful sale and keeping for sale of intoxicating liquors in violation of law, thereby maintaining a nuisance, in a certain building,” by selling, keeping for sale, and being concerned in selling and keeping with intent to sell, intoxicating liquors in violation of law, and decree of permanent injunction was entered.

I. On April 9, 1918, Hall was charged with violating said injunction of June 19, 1917, and with being in contempt of court by reason of such violation. At the hearing on April 19, 1918, Hall appeared in person and by attorney and entered written plea of guilty to the charge of contempt, and the court entered the following order:

“It is hereby ordered, adjudged, and decreed by the court that the defendant, A. S. Hall, be confined at hard labor in the county jail of this county for a period of one year.”

And the further order was entered:

“It is ordered that commitment do not issue until further order of this court.”

II. On December 21, 1922, an application was filed in respondent's court by the assistant county attorney of Pottawattamie county showing that on April 19, 1918, defendant, petitioner in the instant case, was ordered committed to the county jail for a period of one year for violation of a liquor injunction, the injunction of June 19, 1917, and that in the said contempt proceeding of April 19, 1918, the judgment provided that commitment be withheld until further order of the court, and praying that an order of commitment now issue upon the judgment for contempt. This application was set down for hearing. On December 23, 1922, defendant appeared at the hearing in person and by his attorney. Testimony was introduced by the state and by defendant, Hall. The court found that Hall had, on various occasions, and during the months of October, November, and December, 1922, “violated the terms of the injunction entered against him” and found that the “so-called parole entered on April 19, 1918 (being the order entered as follows: “It is ordered that commitment do not issue until further order of this court”), should be revoked, and that commitment should issue under the judgment herein entered on April 19, 1918, and it is ordered that such parole be revoked and that commitment do now issue and that the defendant, A. S. Hall, be confined for one year from this date, under the judgment heretofore entered herein.”

In his return respondent states that commitment did not issue under the order of April 19, 1918, “because of an arrangement between the county attorney and the defendant and his counsel, whereby defendant was to absent himself from this jurisdiction and to cease any further violation of such injunction. This condition was not entered of record, but was made known to the court at said time and was the real reason for the commitment being withheld.”

Counsel for petitioner in their argument confirm said statement of respondent.

III. Propositions relied upon by counsel for petitioner, as gathered from their argument, in substance, are: That the sentence of imprisonment for contempt of April 19, 1918, for one year is void for the reason that under the statute the greatest punishment for the first offense for violation of a liquor injunction is imprisonment for six months in the county jail; that the entire judgment entered for contempt is void, because the order first confines petitioner for one year, and then provides that no order of commitment issue until the further order of court; that the order withholding commitment nullified the entire judgment; that the court had no jurisdiction to make the order entered in December, 1922, committing petitioner--that is, directing that mittimus issue for commitment of petitioner under the judgment of April 19, 1918; that the court was without power in December, 1922, four and one-half years after the sentence for contempt, to order commitment of petitioner thereunder.

IV. Section 2407 as amended appearing in Supplemental Supplement of 1915, reads:

“* * * A party found guilty of contempt under the provisions of this section shall for the first offense be punished by a fine of not less than two hundred nor more than one thousand...