Horrabin v. Iowa City

• Decision Date: 02 July 1913
• Parties: HORRABIN v. IOWA CITY ET AL.
• Court: Iowa Supreme Court

160 Iowa 650

142 N.W. 212

HORRABIN

v.IOWA CITY ET AL.

Supreme Court of Iowa.

July 2, 1913.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

The plaintiff, as a taxpayer, began this action to restrain the city and its officers from making settlement with or payment to Lehman & Bradley, a firm of contractors, for paving done on a certain public street. A temporary injunction was issued as prayed and thereafter vacated on motion of the defendants and the petition dismissed. No restraining order or supersedeas was obtained, and before the appeal was perfected, and while the judgment still stood as a valid and binding adjudication in the district court, the city by its proper officers made settlement with Lehman & Bradley, paying them for the pavement in controversy or issuing to them bonds or certificates for the agreed price. Thereafter, the cause having been docketed in this court upon plaintiff's appeal, the defendants moved to dismiss the same because, the subject-matter of the controversy having been adjusted and settled, there was no substantial question left for this court to consider. That motion was sustained and the appeal dismissed. See Horrabin v. Iowa City, 130 N. W. 150. A motion for rehearing on the part of plaintiff having been granted, the case has been reargued. Appeal dismissed.Wade, Dutcher & Davis, of Iowa City, for appellant.

Frank Messer, Henry G. Walker, John J. Ney, C. S. Ranck, and Stephen Bradley, all of Iowa City, for appellees.

WEAVER, C. J.

[1][2][3] Counsel do not contest the position taken by us on the former hearing so far as it pertains to the main controversy, but insist that, as the trial court vacated the temporary injunction and thereby rendered plaintiff liable prima facie upon the injunction bond, he ought to have the decree reviewed, so far as that question is concerned, to determine (if such be the case) that the order of vacation was improperly entered and thereby relieve him from such liability. No precedent for this practice is pointed out in our cases, and we think none can be found. On the contrary, this court has inferentially, if not directly, held that, when jurisdiction of the main case is exhausted or has been lost, the court will not attempt to retain it for the disposition of questions having only an incidental relation thereto. It is argued with much vehemence that to so hold is essentially unjust, and that under the operation of such a rule, even though plaintiff had a perfectly good cause of action and the vacation of the injunction is palpably erroneous, he is, without fault on his part, deprived of a hearing. To quote from the language of counsel: “He is entitled to a hearing somewhere. He is entitled to have this court pass upon the question as to whether that injunction was rightfully issued or not. This is a constitutional right. To be sure plaintiff is ‘entitled to a hearing somewhere,’ and to that extent the right may be constitutional. But the trouble with the argument is that he has had a ‘hearing.’ The district court had jurisdiction of the person and of the subject-matter and pronounced its finding and judgment thereon in due form. The right to appeal--to have another hearing before another court--is not a constitutional right.”

Moreover, a temporary injunction can exist only as an incident to some case...