Orr v. Jackson

• Decision Date: 17 December 1910
• Citation: 128 N.W. 958,149 Iowa 641
• Parties: ORR v. JACKSON, JUDGE.
• Court: Iowa Supreme Court

149 Iowa 641

128 N.W. 958

ORR

v.JACKSON, JUDGE.

Supreme Court of Iowa.

Dec. 17, 1910.

Proceedings in certiorari to test the legality of an order in habeas corpus proceeding whereby the defendant judge admitted the petitioner therein to bail, pending his appeal to the Supreme Court from an order of dismissal of his petition for writ of habeas corpus. Reversed.Betty & Betty, for plaintiff.

J. G. Kammerer and E. F. Richman, for defendant.

EVANS, J.

This case is one of a series of successive proceedings each of which involved the same and only question. In June 1909, one Otto Seidlitz upon information of the plaintiff herein, E. L. Orr, was adjudged by the defendant judge to be guilty of contempt for violating a liquor injunction, and was adjudged to pay a fine and to be imprisoned for three months. Seidlitz sued out a writ of certiorari in the nature of appeal to this court and obtained here a review of such order. The result of such review here was that the certiorari proceedings were dismissed and the judgment of the lower court affirmed. Seidlitz v. Jackson, Judge, 125 N. W. 230. On June 20, 1910, a procedendo issued from this court, and Seidlitz was taken into custody by the sheriff of Muscatine county, in execution of the judgment against him. On the same day he sued out a writ of habeas corpus before the same judge, challenging again the legality of his imprisonment. In accordance with statutory procedure in such cases, he was immediately brought before the judge by the sheriff in whose custody he was, and a hearing was had on his petition. On such hearing, the defendant judge dismissed the habeas corpus proceeding and remanded back the petitioner, Seidlitz, to the custody of the sheriff who was named as defendant in such proceeding. At the same time, however, the defendant judge ordered that the petitioner be admitted to bail pending his appeal to the Supreme Court from the order of dismissal of his habeas corpus petition. Bail being given forthwith, the petitioner was released from custody. The plaintiff herein challenges the legality of that part of the order of the defendant judge wherein Seidlitz was admitted to bail pending appeal to this court.

1. It is urged by the defendant that the plaintiff is not a party in interest, and has no standing in this court, and that this proceeding should therefore be dismissed. In Hemmer v. Bonson, 139 Iowa, 210, 117 N. W. 257, 19 L. R. A. (N. S.) 610, we held adversely to this contention. It is also urged that certiorari will not lie because there is a speedy and adequate remedy by appeal. This position is not tenable. The plaintiff herein was not a party to the habeas corpus proceeding in such a sense that he could appeal. Neither could he compel the defendant sheriff to appeal. It is made to appear, also, that on November 7, 1910, the defendant sheriff did in fact serve notice of cross-appeal in the main case. Such appeal cannot be heard before the January, 1911, term. It is manifest that no practical result can be obtained by such cross-appeal. When the appeal in the main case is determined, the order admitting Seidlitz to bail will have run its full course. Nothing but a moot question will remain in relation thereto. We are constrained to hold, therefore, that the question of the validity of the order complained of is properly raised by this proceeding.

2. This brings us to the main question. Was there any warrant under the statute for the order admitting Seidlitz to bail pending appeal by him to this court from the order of dismissal of his petition? The habeas corpus proceeding was not a criminal proceeding. State...