Penland v. Penland

• Decision Date: 11 June 1963
• Docket Number: No. 50967,50967
• Citation: 255 Iowa 308,122 N.W.2d 333
• Parties: Ruby Marie PENLAND, Appellee, v. Harry E. PENLAND, Appellant.
• Court: Iowa Supreme Court

Page 333

122 N.W.2d 333

255 Iowa 308

Ruby Marie PENLAND, Appellee, v. Harry E. PENLAND, Appellant.

No. 50967.

Supreme Court of Iowa.

June 11, 1963.

Life, Davis & Life, Oskaloosa, for appellant.

No appearance for appellee.

THOMPSON, Justice.

On August 6, 1959, a decree of divorce was granted to the plaintiff from the defendant. Custody of three minor children of the parties was given to the plaintiff, and it was ordered that the defendant pay to the clerk of the Lee District Court the sum of $7.50 per week for the maintenance and support of each child, commencing on August 8, 1959, and weekly thereafter until 'said children shall attain the age of eighteen years, marry or becomeself-supporting'. The children were at the time six, three, and two years of age, respectively. It is evident that no one of them had reached the age designated, or had married or become self-supporting.

Thereafter, presumably upon the application of the plaintiff, a citation for contempt was issued against the defendant. He was ordered to appear before the Lee District Court on February 5, 1962, to show cause why he should not be punished 'for wilfully disobeying the judgment of the Court made and entered of record on the 6th day of August, 1959, by the terms of which you are required to make payments for the support and maintenance of your three minor children'.

The defendant appeared on the date specified, and a hearing was had, as a result of which he was adjudged to be in contempt and was sentenced to confinement in the Lee County jail for a period of thirty days. From this judgment he appeals.

I. No appeal lies from an order to punish for a contempt, the remedy being by certiorari. Section 665.11, Code of 1962, I.C.A. We have followed this rule in many cases.

However, there is no appearance for either the captioned plaintiff here or the district court, which would normally be the respondent in a properly brought certiorari action. So the question of the validity of the appeal is not raised, except as we may be required to consider it in relation to the question of our jurisdiction. Prior to the adoption of the Rules of Civil Procedure there was no provision for substitution of a proper procedure for review, as by certiorari, for an improper one, as by appeal. But Rule 352, 58 I.C.A. now says:

'CERTIORARI OR APPEAL

'If any case is brought to the supreme court by appeal or certiorari, and the court is of the opinion that the other of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought.

'A petition for writ of certiorari may under this rule be treated by the court as application to grant an appeal (as provided in rule 332) and conversely an application to grant an appeal may be treated as a petition for certiorari.

'Provided, however, nothing in this rule shall operate to extend the time within which an appeal may be taken.'

But this does not solve our problem. Granted that we are directed to consider this appeal as in effect an action in certiorari challenging the jurisdiction or legality of the action of the district court, some difficult questions still present themselves. Rule 307 provides: 'The petition shall be entitled in the name of the petitioner as plaintiff, against the inferior tribunal, board or officer as defendant.' Rule 312 states the manner of service of the writ. If directed to a court, 'service shall be on a judge or clerk thereof;'.

It is apparent that if we are to consider the appeal here as an action in certiorari, we must hold that Rules 307 and 312, supra, are not jurisdictional; that, in effect, we may consider this judgment and sentence of the trial court as a mere part of a controversy between the parties to the original divorce suit. But it is clearly something more than that. What the named defendant here--who should under Rule 307 appear as the plaintiff--seeks to avoid is not his liability to the named plaintiff, but his conviction of contempt and sentence thereunder.

The controversy is clearly between him and the sentencing court. The only interest his former wife has is at best an indirect one, in that she may hope he will attempt to purge himself of the contempt by paying his arrears of support money ordered by the original decree. She has no legal interest, although she may have a personal one, in the sentence imposed. In fact, its effect may well be to impair her chance of obtaining further payments, at least while her former husband rests in the Lee County jail.

But the notice of appeal is directed only to the captioned plaintiffand her attorneys. We have no service of the writ or other notice on the court which made the order, as is required by Rule 312, supra. In fact, there is no writ, and no return to a writ. The court is not named as a defendant, as Rule 307 says 'shall' be done. We do not overlook some language in Jones v. Mould, 151 Iowa 599, 603, 604, 132 N.W. 45, 47; 'While the trial court or judge is designated as the respondent in such proceeding (certiorari), he is not made a defendant in any proper sense of the word, nor is he expected to appear and defend; but he is made respondent simply as the proper person or official to furnish this court a duly authenticated record of the case in which it is alleged he has entered an erroneous or void order or judgment.'

At the time of this pronouncement, the governing statutes contained no such provision as now found in our present Rule 307. In fact, the named respondent was the judge who had entered the claimed erroneous judgment; so that the language used was no more than dictum. It is also dictum opposed to the general current authority on the question. In 14 C.J.S. Certiorari § 60, page 205, it is said: 'While, strictly speaking, only the tribunal whose act it is sought to examine is a necessary defendant, other parties may and must be brought in if their rights are to be adjudicated.' See also 14 C.J.S Certiorari § 105, page 241; Hilton v. Second Judicial District Court, 43 Nev. 128, 183 P. 317, 319 ('The respondent tribunal is the real party respondent to a writ of certiorari * * *';) Tetro v. Public Service Electric & Gas Co., 135 N.J.L. 256, 51 A.2d 439, 440; M. & L. Die & Tool Co. v. Board of Review, 76 R.I. 417, 71 A.2d 511, 512 ('Strictly speaking it would appear that the only necessary parties to the proceeding as it now comes before us are the petitioner and the board;') Marcus v. Commissioner of Public Safety, 225 Mass. 5, 150 N.E. 903, 905 ('The only respondent in a petition for a writ of certiorari is the tribunal whose action is to be examined'); Oregon & Washington Sav. Bank v. Catlin, 15 Or. 342, 15 P. 462, 464 ('the county or other public corporation whose acts are to be reviewed, must be a defendant, and must have the privilege of being heard before its acts can be annulled on writ of review.')

The early case of Chambers v. Lewis, 9 Iowa 583, 584, recognizes this rule. It is there said: 'The county judge alone, by his official title, is made respondent. * * * He is the right party * * *'. So in Tod v. Crisman, 123...