Koch v. Dist. Court of Des Moines Cnty.
Decision Date | 08 February 1911 |
Citation | 129 N.W. 740,150 Iowa 151 |
Parties | KOCH v. DISTRICT COURT OF DES MOINES COUNTY ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Certiorari proceedings to the district court of Des Moines County and to Hon. W. S. Withrow, Judge. Petition dismissed, writ discharged, and order affirmed.Poor & Poor, for petitioner.
M. S. Odle, for defendants.
The return to the writ shows the following facts material to our inquiry: In an action brought by one B. E. Jones against petitioner, Joseph Koch, a decree was entered by the district court of Des Moines county on December 31, 1908, permanently enjoining petitioner, the defendant in the action, from keeping, using, or occupying a building in the city of Burlington for the purpose of keeping, selling, or giving away therein or elsewhere in the judicial district intoxicating liquors. Thereafter, and on November 3, 1910, one M. E. Reusch filed an affidavit and information in the office of the clerk of the district court of Des Moines county, the material parts of which read as follows:
“(3) The said defendant since the rendition of said decree has kept and sold intoxicating liquors in his said place of business in the aforesaid county on lot 18, block 969, Barrett's subdivision, in the city of Burlington, and said sales were in violation of law, and of the decree of this court, as affiant is informed and verily believes.
(4) On October 26, 1910, said defendant did in violation of law and of said decree on the premises aforesaid sell intoxicating liquors, to wit, whisky and beer, to divers persons now unknown to affiant, as affiant is informed and verily believes.
(5) Said defendant on the above-described premises, at various times and to divers persons, at this time unknown to your affiant, unlawfully sold intoxicating liquors, to wit, beer, whisky, and other intoxicants not unknown to affiant.
(6) Since the issuance of said decree, defendant has kept intoxicating liquors with intent to sell the same illegally in the city of Burlington, Iowa, as affiant believes.
Wherefore affiant asks that a warrant issue for the arrest of said defendant, and that he be brought before the honorable district court, or one of the judges, at such time as the said judge or court may set, to show cause, if any he may have, why he should not be held in contempt of court and dealt with accordingly.”
This was subscribed and sworn to by Reusch before a notary public. This information and affidavit was presented to defendant judge, and upon the strength thereof he directed that a warrant issue for the arrest of the petitioner, and that petitioner be brought before him (the judge) at the courthouse in Burlington, Iowa, on November 15, 1910, to show cause why he should not be punished for contempt. Defendant was arrested, gave bond for appearance, came before the court at the time fixed, and filed a motion to quash the information and affidavit for contempt. This motion was overruled, and petitioner herein was ordered to plead or answer said information. Thereupon this writ was sued out, and it is now contended that the defendant judge exceeded his jurisdiction and otherwise acted illegally in that:
“(1) Neither the judge nor the court had or has jurisdiction to order the arrest or detention of plaintiff on the information filed, which affirmatively shows that the person who made and verified the same, did not witness the alleged misconduct of plaintiff which is set forth as constituting the supposed contempt, or have knowledge of the same, but the charge is made upon hearsay merely.
(2) The said so-called information does not set out the alleged facts supposed to constitute the contempt, but only what the affiant is informed are the facts.
(3) Plaintiff's arrest and detention on said so-called information was in violation of article 1, § 8, of the Constitution of Iowa.
(4) No prima facie case of contempt was made by the so-called information.”
The constitutional provision relied upon reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.” Article 1, § 8, Const. Iowa. It is very doubtful if the provision has reference to anything but search warrants; but more as to this hereafter. Section 2407 of the Code, under which the proceedings against petitioner were commenced, reads: It will be observed that the fourth specification of the affidavit and information is upon information and belief; that the fifth is a direct charge, but is not limited except inferentially as to time; that the sixth is upon belief, and the third is in our opinion a direct charge of keeping and selling liquor upon the premises, affiant stating upon information and belief that such sales were in violation of law and of the original 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: In Pumphery v. Anderson, 141 Iowa, 140, 119 N. W. 528, an affidavit upon information and belief was treated as sufficient, although no discussion was had of the sufficiency thereof. The rule quoted generally announced is that an affidavit sworn to on the...
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