Porter v. Butterfield

• Decision Date: 14 February 1902
• Citation: 89 N.W. 199,116 Iowa 725
• Parties: PORTER ET AL. v. BUTTERFIELD ET AL.
• Court: Iowa Supreme Court

116 Iowa 725

89 N.W. 199

PORTER ET AL.

v.BUTTERFIELD ET AL.

Supreme Court of Iowa.

Feb. 14, 1902.

Appeal from district court, Cedar county; W. N. Treichler, Judge.

This is a controversy over the sufficiency of a certain statement of consent to the establishment of saloons in Cedar county. The defendants appeared before the board of supervisors, and objected to a canvass of the statements. The objections were overruled, and defendants thereupon filed what they denominated an answer, in which they denied the sufficiency of the statements and the jurisdiction of the board. Bonds were filed both by plaintiffs and defendants, as provided by law, and the whole matter was certified to the district court. The case being called in that court, petitioners demanded a jury, to which defendants objected. The objections were overruled, and the case was tried to a jury, which found that the statements of consent were sufficient. Defendants appeal. Reversed.Charles W. Kepler, for appellants.

T. B. Hanley, Wright & Wright, and Preston, Grimm & Moffit, for appellees.

DEEMER, J.

Several motions are presented that must be disposed of before we go to the merits. On application to the district court after the appeal was taken the record was corrected as to a matter material on this appeal. No appeal seems to have been taken from that ruling, but appellants herein have filed a motion to strike an amendment to the abstract setting forth the record as corrected. This motion is without merit, and will be overruled. The trial court had jurisdiction to correct the record even after an appeal to this court. Barber v. Scott, 92 Iowa, 57, 60 N. W. 497. As no appeal was taken from the ruling, we cannot determine the correctness of the conclusion reached on the evidence.

Appellees move to dismiss for the reason that the finding made by the jury and the trial court is not an appealable order; that all matters involved in this appeal were disposed of in Butterfield v. Treichler, 85 N. W. 19; and for the further reason that by prosecuting their certiorari proceedings appellants elected to waive their appeal. This motion must also be overruled. True, the right of appeal is purely statutory in the absence of constitutional guaranties, but the statute expressly gives the right from final orders in special actions affecting a substantial right therein (Code, § 4101), and provides that the supreme court has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law (Id. 4100). The certiorari proceeding simply involved the jurisdiction of the district court, and in the case referred to we expressly refused to pass on other questions. The points involved on this appeal were not disposed of in the certiorari proceedings, except in so far as they relate to the question of jurisdiction. The doctrineof election of remedies does not apply for the reason that certiorari and appeal are not necessarily inconsistent remedies. The rule is well stated in Kearney Milling & Elevator Co. v. Union Pac. Ry. Co., 97 Iowa, 723, 66 N. W. 1061, 59 Am. St. Rep. 434, as follows: “A man may not take two contradictory positions; and where he has a right to choose one of two means of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate choice will preclude him thereafter from going back and electing the other.” Applying it to this case, we do not think the remedies of certiorari and appeal are so inconsistent that the assertion of one involves the negation or repudiation of the other. True, certiorari will not ordinarily lie where there is a remedy by appeal, and when the party has a right of appeal he cannot proceed by certiorari. The writ of certiorari is never used to correct a mere error, but to test the jurisdiction of the tribunal or the legality of its action. State v. Roney, 37 Iowa, 30. True, when one pursues the remedy of certiorari, he denies the jurisdiction of the court or the legality of its action, and where he appeals he in effect, impliedly, at least, admits the jurisdiction of the tribunal from whose decision he appeals, although it seems he may even on appeal question the jurisdiction. Petty v. Durall, 4 G. Greene, 120. But in suing out the writ he by no means affirms that the rulings made by the trial court during the progress of the trial were correct. As the remedies are not, therefore, inconsistent, there was no election, and the motion to dismiss is overruled. As sustaining our conclusions to some extent at least, see Smith v. Bricker, 86 Iowa, 285, 53 N. W. 250;Manufacturing Co. v. Carty, 53 N. J. Law, 336, 21 Atl. 851.

2. Turning now to the merits, we have first the ruling on defendants' objections to a trial by jury. In Green v. Smith, 111 Iowa, 183, 82 N. W. 448 (decided after this case was tried in the district court), we held that these proceedings were not triable by jury. Something is said in that case, it is true, to the effect that trial by jury is not an absolute right, and counsel for appellees suggest that, although not an absolute right, yet the trial court, in its discretion, could order it so tried; and that, in any event, no prejudice resulted, because the trial court adopted and sustained the findings of the jury. Admitting the correctness of the quotation from the Smith opinion, we are nevertheless constrained to hold that trial to a jury in such cases is neither a right nor a privilege. The statute in express terms says that “issues of fact in all ordinary actions must be tried by jury; * * * all other issues shall be tried by the court.” Code, § 3650. Reference to a jury to enlighten the conscience of the court is no longer permissible under our practice. The section conferring that power last appearing in the Revision of 1860 was repealed by the Code of 1873, and the section which we have quoted substituted in lieu thereof. Defendants were entitled to the untrammeled and unbiased opinion of the court upon the issues joined, and the trial judge was in error in ordering any of the issues submitted to a jury. These views find support in Hobart v. Hobart, 51 Iowa, 512, 1 N. W. 780. There is no merit in the suggestion that the trial court adopted the findings of the jury, and therefore no prejudice resulted. That suggestion is disposed of in the Hobart Case when it was first before us. See 45 Iowa, 501. This alone is sufficient to dispose of the case, but, as it must be remanded for a new trial, it is deemed advisable to indicate our views on other questions presented, which may arise upon a retrial.

3. Appellants contend that the voters who cast their ballots at the last general election preceding the filing of the statements of consent may only be ascertained from the poll books, and that in the instant case the trial court was in error in permitting plaintiffs to produce and admit an almost innumerable number of witnesses whose names were on the statements of consent to testify that they voted at the general election under a somewhat different name. The Code provides that these statements of consent shall be signed by a certain percentage of the voters (depending on the size of the locality) who voted at the last preceding election, as shown by the poll list of said election. Code, §§ 2448, 2449. The poll...