Hammer v. Utterback

• Decision Date: 21 June 1926
• Docket Number: No. 37396.,37396.
• Citation: 202 Iowa 50,209 N.W. 522
• Parties: HAMMER v. UTTERBACK, DISTRICT COURT JUDGE.
• Court: Iowa Supreme Court

202 Iowa 50

209 N.W. 522

HAMMER

v.UTTERBACK, DISTRICT COURT JUDGE.

No. 37396.

Supreme Court of Iowa.

June 21, 1926.

Proceeding in contempt for violation of a liquor injunction. The trial judge found that the petitioner had violated said injunction and imposed a penalty for such violation. Writ sustained in part, and annulled in part.Walter F. Maley, of Des Moines, for petitioner.

Vernon R. Seeburger, Co. Atty., of Des Moines, for respondent.

FAVILLE, J.

In November, 1923, the petitioner herein was placed under permanent injunction restraining him from maintaining a liquor nuisance and from keeping and selling intoxicating liquors in violation of law. On the 18th day of September, 1925, the petitioner was duly cited to appear and show cause why he should not be punished as for contempt. His hearing was set for September 26, 1925, and the petitioner was released on bond. On the said date for trial the petitioner did not appear in person, but his present counsel appeared in open court and entered into an agreement with the prosecuting attorney with regard to the taking of the testimony of a certain witness at said time who could not be present at a later date. The hearing was continued until October 3, 1925, at which time the petitioner appeared, with the same counsel, and the cause proceeded to final hearing and determination.

[1][2] I. The petitioner contends that the testimony of the witness that was taken on the 26th day of September, 1925, was had when the petitioner was not present and when he was not represented by counsel then authorized to represent him. It appears that counsel was present at the time the testimony of this witness was taken, that it was stated at the time that he did not formally represent the petitioner, but that he might represent him, and it was agreed in open court that the testimony of the witness should be taken at said time and that there should be reserved to counsel for the petitioner the right to make a motion which counsel desired to make before any testimony was received. The witness was cross-examined at length by said counsel. At the time fixed for final hearing, the petitioner and said counsel appeared. In accordance with the previous understanding and arrangement, counsel for the petitioner was permitted to then make the motion previously referred to. No question was urged, no motion made, no objection whatever was interposed to the consideration of the testimony of the witness which had been previously taken. The petitioner is in no situation to now urge, for the first time, the objection with regard to the consideration of the testimony of said witness, taken under said circumstances. The cause could have been tried upon affidavits. Code, § 2028. Upon the entire record, the proceedings were without prejudice to the rights of the petitioner. The petitioner's claim, at this point, is lacking in merit.

[3] II. Certain exhibits were offered in evidence which it is claimed were obtained by means of a search warrant. The petitioner contends that the search warrant which was issued by a judge of the municipal court of the city of Des Moines was insufficient to comply with the statute regarding search warrants. The evidence was admissible, under our holdings. State v. Tonn, 195 Iowa, 94, 191 N. W. 530;Joyner v. Utterback, 196 Iowa, 1040, 195 N. W. 594.

III. The identification of the petitioner as the party against whom the injunction has been issued was ample under the evidence in the case.

IV. We quote from the petitioner's brief, as follows:

“It is the claim of petitioner that, until the shorthand notes were filed and until the testimony itself was reduced to writing and filed in the office of the clerk of the district court, the order of commitment was lifeless and without effect.”

Reference is made to Code, § 12547. It appears affirmatively that the shorthand notes were properly certified by the judge and reporter and filed at the proper time, and some four days before judgment...