Jordan v. Circuit Court of Wapello Co.

• Decision Date: 17 June 1886
• Parties: JORDAN AND OTHERS v. CIRCUIT COURT OF WAPELLO CO. M. OEHLSCHLAGER v. CIRCUIT COURT OF WAPELLO CO. JOSEPH OEHLSCHLAGER v. CIRCUIT COURT OF WAPELLO CO.
• Court: Iowa Supreme Court

69 Iowa 177

28 N.W. 548

JORDAN AND OTHERS

v.CIRCUIT COURT OF WAPELLO CO.

M. OEHLSCHLAGER

v.CIRCUIT COURT OF WAPELLO CO.

JOSEPH OEHLSCHLAGER

v.CIRCUIT COURT OF WAPELLO CO.

Supreme Court of Iowa.

June 17, 1886.

Proceedings in certiorari to test the validity of an order of fine and an imprisonment made for an alleged contempt of court. The writ was issued in each case.E. H. Stiles and D. C. Beaman, for plaintiffs.

McNett & Tisdale, Sloan, Work & Brown, Roberts & Epps, and W. S. Coen, for defendant.

ADAMS, C. J.

The facts in the three cases are similar in most respects, and they are submitted together. On the second day of May, 1885, writs of injunction were issued in certain actions, respectively, by the circuit court of Wapello county, wherein these plaintiffs were the respective defendants, and the writs were served upon them restraining them from selling liquor upon certain described premises. In November, 1885, it was shown to the court, by the affidavit of one Drake, that the defendants in the respective injunctions had sold intoxicating liquor in violation of the injunction served upon them. Notice to show cause against punishment was served upon them, and they appeared and answered. Afterwards such proceedings were had that they were adjudged to be in contempt, and were each adjudged to pay a fine of $500, and stand committed until the fine should be paid.

1. These plaintiffs, defendants in the respective injunction actions and contempt proceedings, contend that no valid writ of injunction ever issued, for the reason that no order was ever made which justified the clerk in issuing the writ. The order upon which the clerk acted appears to have been issued by the judge in vacation, and the order was not indorsed upon the petition, but was written upon a separate paper. The statute provides that, if the order be made in vacation, “the judge must indorse the order upon the petition.” Code, § 3394. This not having been done, these plaintiffs contend that the order was void. But, in our opinion, the provision of statute referred to is not mandatory, but simply directory, and therefore that the order is not void notwithstanding the irregularity. In Parish v. Elwell, 46 Iowa, 162, it was said: “It is a general rule of law that statutes directing the mode of procedure of public officers relating to time and manner, where there are no negative words restricting the action, and nothing showing a different intent, are directory;” citing Dishon v. Smith, 10 Iowa, 212. It appears to us that the cases at bar fall within the spirit of that decision.

2. The statute provides that “unless the contempt is committed in the immediate view and presence of the court, or comes officially to its knowledge, an affidavit showing the nature of the transaction is necessary as a basis for further action in the premises.” Code, § 3495. The affidavit of one Drake was filed in these cases; but it is objected that it is insufficient, because it merely shows the facts constituting the violation of the injunctions, and does not show that the affiant had personal knowledge of the facts. In our opinion, however, the affidavit complies with the statute. It is not expressly provided that the affiant shall show that he had personal knowledge of the facts, and the only action of the court which can be based upon the affidavit is of a formal character; the evidence upon which the defendant is to be adjudged guilty, if at all, being still to be adduced.

3. The Code requires that, “where the action of the court is founded upon evidence given by others, such evidence must be in writing, and be filed and preserved.” The evidence in these cases was taken in writing and filed and preserved; but it is insisted by these plaintiffs that it is insufficient, for the reason, as alleged, that it was taken ex parte. But, in our opinion, their position cannot be sustained. These plaintiffs were cited in those cases to appear on the twentieth day of November, 1885, before the circuit court of Wapello county, and show cause against punishment. On that day the court proceeded to take the evidence in question in writing. Mr. E. H. Stiles, attorney for these plaintiffs, was present at first, but expressly refused to remain. Afterwards he addressed a note to the court to the effect that the court might consider his appearance as made for the person charged, to obviate the necessity for their actual appearance. It is true that Mr. Stiles now shows that he supposed that his clients were about to be arrested, and that he wrote the note to prevent such result, and under a mistake of fact. But we think that the court was justified in proceeding to take the evidence, and that the fact that these plaintiffs were not present, either personally or by counsel, was due to their own fault.

Another position taken by counsel, if we understand them, is that the proceedings were criminal, and that the court, for that reason, if no other, could not proceed in the absence of the persons charged. But, while it is true that proceedings for punishment for contempt are, in a certain sense, of a criminal nature, they are not governed by the Code of Criminal Procedure, but by a special statute. Under that statute it appears to be sufficient to serve a rule to show cause against the punishment, as was done in this case, and the court, we think, was not bound to make an arrest before proceeding if the person charged failed to obey the rule served.

4. It is next objected that no evidence was introduced upon the proceedings showing the order for the issuance of a writ of injunction. It appears however, that the writ of injunction was introduced, and return of service,...