Nies v. Dist. Court in & for Woodbury Cnty.

• Decision Date: 14 February 1917
• Docket Number: No. 31297.,31297.
• Citation: 179 Iowa 326,161 N.W. 316
• Parties: NIES ET AL. v. DISTRICT COURT IN AND FOR WOODBURY COUNTY ET AL.
• Court: Iowa Supreme Court

179 Iowa 326

161 N.W. 316

NIES ET AL.

v.DISTRICT COURT IN AND FOR WOODBURY COUNTY ET AL.

No. 31297.

Supreme Court of Iowa.

Feb. 14, 1917.

Appeal from District Court, Woodbury County; J. W. Anderson, Judge.

Certiorari to review the action of the said judge. The plaintiffs were adjudged guilty of having violated a temporary injunction enjoining them from violations of the laws of the State regulating the sale and keeping of intoxicating liquors, and bring this proceeding to review the judgment finding they had violated said injunction. Affirmed in part, and annulled in part.T. F. Bevington and Jepson & Stecker, all of Sioux City, for plaintiffs.

John F. Joseph, of Sioux City, for defendants.

SALINGER, J.

I. It is complained that the defendant judge was swayed by passion and prejudice and maintained a nonjudicial attitude towards the defendants and their rights throughout the trial. We have to say that, if any criticism be warranted, it is that the trial judge was utterly too patient. We will not enlarge beyond saying that Mr. Bevington, of counsel for the defendants, indulged in unceasing objections that seem utterly without warrant, and that he persisted in filling the record to an enormous extent with matters that can throw no possible light on what the proceeding involves for decision.

[1] II. All the defendants were charged with violating a temporary injunction granted on February 16, 1915. C. W. Nies contends he may not lawfully be punished for violating that injunction, even if he disobeyed it, because before this temporary injunction was granted he had already been permanently enjoined. He claims his case is within the rule of Dickinson v. Eichorn, 78 Iowa, 710, 43 N. W. 620, 6 L. R. A. 187, and Steyer v. McCauley, 102 Iowa, 105, 71 N. W. 194. The difficulty is that whether a second injunction shall issue when another is in existence may depend on evidence on whether the first injunction was obtained colorably, as a device for interfering with the enforcement of the prohibitory law. Had he made due objection to and appealed from the granting of the second injunction, he would have the right to have considered whether the second injunction should have been allowed. But interposing to a charge of contempt for violating an injunction that the injunction should not have been granted is a purely collateral attack upon that injunction on the ground that it was error to grant it. We think he is within the rule of Geyer v. Douglass, 85 Iowa, 93, 52 N. W. 111, that, though the evidence may be insufficient to support the granting of an injunction, that fact does not make the injunction subject to collateral attack.

If it be his claim that a temporary injunction is merged in, and its effect destroyed by, a permanent injunction later granted, it may be said that that is probably the law. See Code 1897, § 4356; Giliman v. Talley, 140 Iowa, 718, 119 N. W. 144;Chamberlain v. Brown, 144 Iowa, 601, 123 N. W. 161;Horrabin v. City, 160 Iowa, 650, 130 N. W. 150, 142 N. W. 212;Bethany v. Morse, 151 Iowa, 521, 132 N. W. 14. It is doubtful whether this point is made, and whether more is claimed than that the second injunction should not have issued because it was the second injunction. Be that as it may, the law does not fit the case. The temporary injunction which defendant is accused of having violated was never followed up by a permanent injunction. Consequently, there is no occasion to consider the effect of subsequent permanent injunctions upon an antecedent temporary one.

III. Plaintiff contends certain of our decisions hold that the review of action on a charge of contempt is a hearing de novo. We hold the contrary in State v. Liquors, 76 Iowa, at page 244, 41 N. W. 6, 2 L. R. A. 408, and in Nies v. Jepson, 156 N. W. 292.Lindsay v. District Court, 75 Iowa, 509, 39 N. W. 817, does not decide the review is de novo. Neither does McNiel v. Horan, 153 Iowa, 630, 133 N. W. 1070;Barber v. Brennan, 140 Iowa, 678, 119 N. W. 142;Lewis v. Brennan, 141 Iowa, at page 586, 120 N. W. 332;Sawyer v. Hutchinson, 149 Iowa, 93, 127 N. W. 1089; and Allen v. Brennan, 126 N. W. 771. All involve a review of an acquittal. McNeil's Case is, on this point, that, while the findings below do not have the force and effect of a verdict, they will be reluctantly interfered with if the evidence is in conflict. Barber v. Brennan is that a refusal to punish is not disturbable if there be evidence upon which may properly be found that defendant is not guilty; but, if the evidence of violation is conclusive, the facts will be reviewed and a remand ensue. An acquittal upon conflicting evidence will not be annulled unless the finding of not guilty is clearly wrong. Allen v. Brennan, supra. The Sawyer Case says:

“Of course, if the testimony be uncontradicted, or so clearly preponderates as to make it reasonably conclusive that the party charged was in contempt, we shall have no hesitancy in annulling the proceedings and remanding the case for proper action”--but that the opinion of the trial court will not be wholly disregarded if there be a substantial conflict in evidence.

The Lewis Case holds merely that we cannot disturb an acquittal if there be no affirmative finding upon which guilt can be predicated, and the evidence is not before us. Dutton v. Anderson, 163 Iowa, 613, 145 N. W. 321, and Cheadle v. Roberts, 150 Iowa, 642, 130 N. W. 368, hold that in reviewing a finding of guilty on certiorari weight will be accorded the finding of the trial court. Rist v. District Court, 162 Iowa, 244, 143 N. W. 1086, is that a finding of guilty of contempt will not be disturbed if there be a substantial conflict. Sawyer v. Hutchinson, 149 Iowa, 93, 127 N. W. 1089, rules that a contempt proceeding is quasi criminal and requires a greater weight of evidence than ordinary civil cases, and a clear case should be made before punishment is inflicted for the violation of an injunction. It has support in Hydock v. State, 59 Neb. 296, 80 N. W. 902.In re Taylor (Cal.) 10 Pac. 88,¹ holds the same, and adds a requirement of clear and satisfactory evidence establishing guilt beyond reasonable doubt. So does State v. Cunningham, 33 W. Va. 607, 11 S. E. 76.Benbow v. Kollom, 52 Minn. 433, 54 N. W. 482, says the evidence is too indefinite in vital points to sustain a finding of violation.

[2][3] On the whole, we think the rule is that the review is not de novo; that, while the finding below has weight, it does not have as much as has a verdict; and that, while evidence to sustain a finding of guilty must amount to more than the mere preponderance which sustains an ordinary recovery on the law side, it is not required to prove violation of an injunction beyond a reasonable doubt.

[4][5] IV. A bottle of whisky, partly full, was found in a pantry in the basement, and a hidden quantity of bottled beer in another part of the basement, and sacks full of empty beer bottles were also found therein; and there is testimony that prior to this raid some beer drinking by women occurred in a room of the hotel, tenanted by defendant Mrs. Nies.

Whatever effect the finding of this liquor would have if no more than finding it appeared, the evidence satisfies us neither defendant is responsible for the presence of this liquor. As to the beer, there is an almost conclusive showing that they are not. The chauffeur and the porter employed about the place testified, without any direct dispute, that the hidden beer was gotten by them in another state, to be used on a picnic a little later, and that the whole enterprise was something of which Mrs. Nies and her husband knew absolutely nothing; and it appears that when Mrs. Nies ascertained this had been done at least one of these employés, if not both, were by her discharged. It is true there are slight flaws in this evidence. For instance, they claim to have placed but 76 bottles of beer in hiding, and some 10 bottles more than that were found. Then, too, this picnic was to be had at or near a point which the buyers of it had to pass in taking the beer to Sioux City to be hidden. But, when all is said, the evidence on the beer found is in such condition as that, under the rules of review on certiorari as we have stated them, the finding of the beer does not help to maintain the charge at bar. Under the same rules, we are constrained to hold that the evidence fails to sustain the claim of drinking by women, assuming it would be material if proved. The finding of empty beer bottles creates no presumption of illegal sale or keeping for sale, and the evidence satisfies us the defendants are not shown to have been responsible for those being where they were found.

V. The injunction restrains Nies, his servants, agents, tenants, and representatives and employés, or by, through, or under any person or persons directly or indirectly, by, through, upon, or under any device, apparatus, or evasion, from keeping for sale intoxicating liquors. Now, if it be material whether he was a mere volunteer, he seems not to have been that.

[6] It appears he was putting his time “as husband” in arranging to get the basement of his wife's hotel turned into a pool hall and soft drink parlor. He says his object in having “this” put in was to prevent a violation of law, and his intent was to help the hotel along in the way of rent. He helped Paxton, the lessee of his wife, to select, and in part to put into readiness for operation, the apparatus which Paxton was to use in vending beverages. He furnished cash bail when women were arrested for drinking in the hotel; and there is evidence from which it can be found that when the officers attempted to raid the hotel at the time when the malta, the keeping of which is the basis of the prosecution, was found therein, he acted in opposition to their entering, and that they found themselves ultimately compelled to break in. About the only difference between him and the subtenant who was to sell the malta is that Nies did...