Sergio v. Utterback

• Decision Date: 23 November 1926
• Docket Number: 37884
• Citation: 210 N.W. 907,202 Iowa 713
• Parties: ROSS SERGIO, Petitioner, v. HUBERT UTTERBACK, Judge, Respondent
• Court: Iowa Supreme Court

210 N.W. 907

202 Iowa 713

ROSS SERGIO, Petitioner, v. HUBERT UTTERBACK, Judge, Respondent

No. 37884

Supreme Court of Iowa, Des Moines

November 23, 1926

Certiorari to Polk District Court.--HUBERT UTTERBACK, Judge.

Original proceeding in certiorari to test the validity of a judgment entered by the respondent against the petitioner (defendant below) in a liquor contempt proceeding.--Writ sustained.

Writ sustained.

E. S Thayer, for petitioner.

Vernon R. Seeburger, County Attorney, and Russell Jordan, Assistant County Attorney, for respondent.

DE GRAFF, C. J. STEVENS, FAVILLE, and VERMILION, JJ., concur.

OPINION

DE GRAFF, C. J.

This is a certiorari to the judgment of the district court of Iowa in and for Polk County, Hubert Utterback, judge. The primary proposition relied upon by petitioner is that the trial court was without jurisdiction to enter without notice a nunc pro tunc order, presently noted, subsequently to the issuance of the writ of certiorari by this court, and to amend the return to the writ to show said order.

The historical sequence of facts is as follows: On the 29th day of May, 1925, a decree was entered in the district court of Iowa in and for Polk County, enjoining and restraining the petitioner (Ross Sergio) from maintaining a liquor nuisance. On November 16, 1925, a petition was filed, alleging the violation of said injunction by the defendant, and praying that he be cited and punished for contempt. The defendant was found guilty, and judgment was entered November 28, 1925. On December 24, 1925, upon the petition of the defendant, a writ of certiorari issued, commanding the respondent herein to certify and return, on or before the first day of February 1926, "a transcript of the records and proceedings, as well as the facts" in said cause. The respondent did filed in this court, on January 30, 1926, a return. Subsequently, and on May 1, 1926, an amendment to the return was filed in this court by the respondent, which recited:

"That, on the 30th day of April, 1926, the following order was signed by the undersigned judge and filed for record in the office of the clerk of the district court, Polk County, Iowa, and the same appears in the contempt calendar in the office of said clerk.

"'Now on this 30th day of April, 1926, it appearing to the court that Ross Sergio appeared in open court on the 21st day of November, 1924, in response to a citation for contempt of court; that on said date the defendant Ross Sergio pled guilty to the charge of contempt of court, and that this court set the time for pronouncing judgment for the 28th day of November, 1925, and that, on the said 28th day of November, 1925, a decree was signed by the court and filed, and it further appearing to this court that the notation of the plea of the defendant, Ross Sergio, was not entered in the calendar at the time, it is therefore ordered that this order be entered nunc pro tunc, as of the 21st of November, 1925.'

"Hubert Utterback, Judge."

The petitioner filed in this court a motion to strike from the records the amended return and the respondent's amendment to the abstract filed herein, on the ground that the trial court "was without power, authority, or jurisdiction to enter said order, because said entry was after final judgment, after the term, after the removal of the proceedings to the Supreme Court by certiorari, and without notice to or knowledge of the petitioner herein or any counsel representing him * * *; that the purported order as shown in the respondent's amended return is, in fact, an attempted amendment to the final judgment of the lower court in said cause, the records and proceedings of which were removed to this court by a writ of certiorari."

If the petitioner's motion to strike is sustained, it is apparent, on the fact of the original return, that the statutory requirement of a transcript of the evidence upon which the judgment of guilt is predicated, was not respected. When a judgment in a contempt proceeding is founded on evidence, such evidence must be in writing, and filed and preserved as part of the record in the case. Section 12547, Code of 1924.

The record, as shown by the return, is conclusive as to all matters questioned on certiorari. Hatlestad v. Hardin County Dist. Court, 137 Iowa 146, 114 N.W. 628; Cooley v. Ayres, 180 Iowa 740, 163 N.W. 625. The original return in the instant case fails to show that any evidence was taken, filed, and preserved on the contempt hearing, although the judgment entered recites that evidence was heard.

To determine whether there is a material departure from the statutory rule in this respect, reference must be made to the return of the respondent. Gibson v. Hutchinson, 148 Iowa 139, 126 N.W. 790. This is the function of the return. According to the judgment entry, "the court inspected the files and heard the evidence." The original return, as certified by the official shorthand reporter, recites that the return as made "is a full, true, and complete transcript of the proceedings and orders had in the above entitled case."

Clearly, the instant proceeding is an action "founded upon evidence given by others," within the purview of the statute. Section 12547. See Teasdale v. Anderson, 196 Iowa 673, 195 N.W. 231.

From the early case of Skiff v. State, 2 Iowa 550, we have consistently held that the return must disclose whether the court acted upon evidence given by others or upon its own knowledge, and that the evidence or facts upon which the court acted must be preserved and shown. In the opinion of State v. District Court, 124 Iowa 187, 99 N.W. 712, these words are found:

"* * * it is made imperative that the particular act done or words spoken in alleged contempt shall be, in substance, preserved in the record, in order that, upon review of the judgment, the appellate tribunal may be put in possession of an accurate history of the case from its inception. A failure to preserve such record we have held sufficient ground for reversing a judgment assessing punishment for contempt."

See, also, State v. Utley, 13 Iowa 593; State v. Folsom, 34 Iowa 583; State v. Myers, 44 Iowa 580; Dorgan v. Granger, 76 Iowa 156, 40 N.W. 697; State ex rel. Aldrich v. District Court, 133 Iowa 450, 110 N.W. 592.

To adopt any other rule at this time would simply create confusion in our cases. Gibson v. Hutchinson, supra. In brief, the rule of statute defined in Section 12547, Code of 1924, is in plain and unambiguous language, and does not call for judicial construction.

Was the trial court, without notice to the defendant and on its own initiative, legally privileged to enter the nunc pro tunc order after the issuance of the writ of certiorari by this court, and to amend the original return so as to show that a plea of guilty had been entered by the defendant (petitioner herein) in the contempt proceeding? It cannot be questioned that the return of the respondent may be amended to show the facts as established by the record. The record however, when the return was made, did not disclose the plea of...