Kommelter v. District Court of Wapello County

• Decision Date: 21 June 1938
• Docket Number: 44497.
• Citation: 280 N.W. 511,225 Iowa 273
• Parties: KOMMELTER v. DISTRICT COURT OF WAPELLO COUNTY et al.
• Court: Iowa Supreme Court

280 N.W. 511

225 Iowa 273

KOMMELTER v. DISTRICT COURT OF WAPELLO COUNTY et al.

No. 44497.

Supreme Court of Iowa.

June 21, 1938

Certiorari to District Court, Wapello County; Elmer K. Daugherty, Judge.

Action by certiorari to review ruling of trial court in overruling a motion to dismiss a county attorney's information charging the defendant with the crime of falsification of corporate records.

Writ annulled.

Robert J. Shaw, of Sigourney, for petitioner.

E. J Grier, Co. Atty., Wapello County, Iowa, and John F. Webber Asst. Co. Atty., Wapello County, Iowa, both of Ottumwa, for respondents.

ANDERSON, Justice.

This is an action purely and simply to review an alleged error made by the respondent as district judge in the district court of Wapello County, Iowa. In view of our disposition of the appeal it will not be necessary to make an extended statement of facts. However, it appears that the grand jury of Wapello County while in regular session in April, 1938, investigated certain charges against one A. F. Beck involving an alleged embezzlement from a corporation or corporations of which he was an officer, and in connection with such investigation the petitioner in this case, Josephine H. Kommelter, was called and appeared as a witness. It is disclosed, however, that petitioner was not interrogated before the grand jury as to any matters involving her own misconduct or criminality. However, she claims that by her involuntary appearance and examination before the grand jury that she should receive immunity from a charge of falsifying corporate records.

The grand jury completed its work and was discharged on the 11th day of April, 1938. On the 22nd day of April, 1938, the county attorney of Wapello County filed in the office of the clerk of the district court a county attorney's information charging the petitioner, Josephine H. Kommelter with the crime of falsification of corporate records, which information was approved by the district judge as by law provided, and had indorsed thereon the names of nine witnesses and contained a brief synopsis of the testimony of each witness.

The defendant upon arraignment first pleaded not guilty and later this plea was withdrawn and a motion to dismiss the information was filed. The motion is based upon many grounds. However, it will not be necessary to consider these grounds as we propose to dispose of the appeal in another manner. The motion to dismiss the information was, upon submission overruled by the court and, following such ruling, a petition for a writ of certiorari was filed in this court. The writ was issued and return made thereto. Petitioner is complaining as to the correctness of the ruling of the trial court overruling the motion to dismiss. The only error assigned is that " The court erred in overruling petitioner's motion to dismiss information."

It will be observed that no claim is made as to a want of jurisdiction or that the court exceeded its proper jurisdiction, or otherwise acted illegally, and the question that it is sought to have this court decide in this proceeding is one clearly involving an error of law only.

No question is raised in the briefs as to the propriety of reviewing the claimed erroneous action of the trial court by certiorari, in fact the respondents state in their brief that they are " not questioning the propriety of the bringing of this action by certiorari as the respondents are satisfied in having a judicial determination of the questions raised." We have many times held that this court, having issued a writ of certiorari, will, on final hearing, determine whether the writ is allowable, even though such question is not raised by the parties litigant. Dickson Fruit Co. v. District Court, 203 Iowa 1028, 213 N.W. 803; Samek v. Taylor, 203 Iowa 1064, 213 N.W. 801, and cases cited; and Morrison v. Patterson, 221 Iowa 883, 267 N.W. 704.

The statute, Sec. 12456, providing for the writ, provides that the writ may be...