Koch v. District Court of Des Moines County

Decision Date08 February 1911
Citation129 N.W. 740,150 Iowa 151
PartiesJOSEPH KOCH, Petitioner, v. THE DISTRICT COURT OF DES MOINES COUNTY, IOWA, and W. S. WITHROW, Judge, Defendants
CourtIowa Supreme Court

CERTIORARI proceedings to the district court of Des Moines County and to Hon. W. S. Withrow, Judge.

Petition dismissed, writ discharged, and order affirmed.

Petition dismissed, writ discharged, and order made by the defendant judge, Affirmed.

Poor & Poor, for petitioner.

M. S Odle, for defendants.

OPINION

DEEMER, J.

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 eighteen, 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 now 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 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, section 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, section 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: "In case of the violation of any injunction granted under the provisions of this chapter, the court, or in vacation a judge thereof, may summarily try and punish the offender. The proceedings shall be commenced by filing with the clerk of the court an information under oath, setting out the alleged facts constituting such violation, upon which the court or judge shall cause a warrant to issue, under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses." 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: "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." In Pumphrey 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 belief of a party is equivalent to swearing that it is true. Champ v. Kendrick, 130 Ind. 549 (30 N.E. 787); State v. Ellison, 14 Ind. 380; Simpkins v. Malatt, 9 Ind. 543; Harris v. Heberton, 6 Miss. 575; Osprey v. Jenkins, 9 Mo. 643; Pratt v. Stevens, 94 N.Y. 387; Election Cases, 65 Pa. 20; Gibbons v. Sheppard, 2 Brewster's Reports 1. To swear that one believes a thing to be true is equivalent to swearing that it is true. Again, where the facts required in an affidavit are of such a character that positive...

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