Jordan v. Circuit Court of Wapello Co.,

CourtUnited States State Supreme Court of Iowa
Writing for the CourtADAMS
Citation69 Iowa 177,28 N.W. 548
Decision Date17 June 1886
PartiesJORDAN AND OTHERS v. CIRCUIT COURT OF WAPELLO CO. M. OEHLSCHLAGER v. CIRCUIT COURT OF WAPELLO CO. JOSEPH OEHLSCHLAGER v. CIRCUIT COURT OF WAPELLO CO.

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.

[28 N.W. 548]

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

[28 N.W. 549]

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...

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27 practice notes
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...Worland v. State, 82 Ind. 49; Haskett v. State, 51 Ind. 176; McConnell v. State, 46 Ind. 298; Jordan v. Walpello Co., etc., 69 Iowa, 177, 28 N. W. 548; Montgomery v. Palmer, 100 Mich. 436, 59 N. W. 148; Herdman v. State, 54 Neb. 626, 74 N. W. 1097; Cooley v. State, 46 Neb. 603, 65 N. W. 799......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...in the original note and the subsequent ones, In re Acock, 84 Cal. 50, 23 P. 1029; Jordan v. Wapello County Circuit Court, 69 Iowa, 177, 28 N.W. 548; Hughes v. Territory, 10 Ariz. 119, 85 P. 1058, 6 L.R.A. (N.S.) 572; State v. District Court, 37 Mont. 590, 97 P. 1032. To the same effect, as......
  • Koch v. District Court of Des Moines County
    • United States
    • United States State Supreme Court of Iowa
    • February 8, 1911
    ...injunctional decree. In construing a statute very similar to section 2407 of the Code, this court held in Jordan v. Circuit Court, 69 Iowa 177, 28 N.W. 548, that an information or affidavit upon information and belief was sufficient basis for a charge of contempt. In that case it was said: ......
  • Koch v. Dist. Court of Des Moines Cnty.
    • United States
    • United States State Supreme Court of Iowa
    • February 8, 1911
    ...decree. In construing a statute very similar to section 2407 of the Code, this court held in Jordan v. Circuit Court, 69 Iowa, 177, 28 N. W. 548, that an information or affidavit upon information and belief was sufficient basis for a charge of contempt. In that case it was said: “The affida......
  • Request a trial to view additional results
27 cases
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...Worland v. State, 82 Ind. 49; Haskett v. State, 51 Ind. 176; McConnell v. State, 46 Ind. 298; Jordan v. Walpello Co., etc., 69 Iowa, 177, 28 N. W. 548; Montgomery v. Palmer, 100 Mich. 436, 59 N. W. 148; Herdman v. State, 54 Neb. 626, 74 N. W. 1097; Cooley v. State, 46 Neb. 603, 65 N. W. 799......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...in the original note and the subsequent ones, In re Acock, 84 Cal. 50, 23 P. 1029; Jordan v. Wapello County Circuit Court, 69 Iowa, 177, 28 N.W. 548; Hughes v. Territory, 10 Ariz. 119, 85 P. 1058, 6 L.R.A. (N.S.) 572; State v. District Court, 37 Mont. 590, 97 P. 1032. To the same effect, as......
  • Koch v. District Court of Des Moines County
    • United States
    • United States State Supreme Court of Iowa
    • February 8, 1911
    ...injunctional decree. In construing a statute very similar to section 2407 of the Code, this court held in Jordan v. Circuit Court, 69 Iowa 177, 28 N.W. 548, that an information or affidavit upon information and belief was sufficient basis for a charge of contempt. In that case it was said: ......
  • Koch v. Dist. Court of Des Moines Cnty.
    • United States
    • United States State Supreme Court of Iowa
    • February 8, 1911
    ...decree. In construing a statute very similar to section 2407 of the Code, this court held in Jordan v. Circuit Court, 69 Iowa, 177, 28 N. W. 548, that an information or affidavit upon information and belief was sufficient basis for a charge of contempt. In that case it was said: “The affida......
  • Request a trial to view additional results

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