Shearer v. Sayre

• Decision Date: 14 December 1928
• Docket Number: 39009
• Citation: 222 N.W. 445,207 Iowa 203
• Parties: BEN SHEARER, Appellant, v. R. W. SAYRE, Mayor, Appellee
• Court: Iowa Supreme Court

222 N.W. 445

207 Iowa 203

BEN SHEARER, Appellant, v. R. W. SAYRE, Mayor, Appellee

No. 39009

Supreme Court of Iowa, Des Moines

December 14, 1928

Appeal from Jasper District Court.--D. W. HAMILTON, Judge.

The plaintiff commenced this action in certiorari in the district court, to review the action of the defendant, as mayor of the city of Newton, in overruling a motion for change of venue in a case pending before said mayor, on information which charged the plaintiff with the crime of assault and battery in violation of the state law. A return was made to the writ and the mayor filed a motion to quash or annul the writ which motion was by the court sustained, and the action dismissed by the court, and judgment rendered against the plaintiff for the costs. From this action by the trial court, the plaintiff has appealed.

Reversed.

A. M. Miller, for appellant.

John Fletcher, Attorney-general, and George E. Campbell, County Attorney, for appellee.

OPINION

WAGNER, J.

The plaintiff was charged by information before the defendant, mayor of the city of Newton, with the crime of assault and battery, not in violation of a city ordinance, but in violation of the state law. The plaintiff was arrested, and brought before the mayor, and to the information entered a plea of not guilty. Before any testimony was taken, the plaintiff, in strict conformity with Section 13569 of the Code of 1927, filed a motion for change of venue, supported by affidavit, stating that he could not obtain justice before said mayor, which motion was overruled; and, over plaintiff's objection, the mayor proceeded with the trial, which, on July 28, 1927, resulted in a finding of guilty, as charged in the information, and a judgment against the defendant of a fine and the costs.

The plaintiff, on the 15th day of the following August, commenced this action in certiorari in the district court, to review the action of the defendant mayor in overruling his motion for change of venue. The defendant made due return to the writ, and filed a motion to quash or annul the writ, upon the grounds that the plaintiff is not entitled to the relief demanded, and that he had a plain, speedy, and adequate remedy by appeal, which motion was by the court sustained, and the plaintiff's action was dismissed, and judgment was rendered against the plaintiff for costs. From this action by the district court, the plaintiff has appealed.

It is not, and could not, be claimed that the mayor did not have jurisdiction to try the defendant for the crime of assault and battery in violation of the state law. See Section 5732 of the Code. The proceedings before a mayor, with reference to a criminal case brought under the state law, shall be in accordance with the law regulating similar proceedings before a justice of the peace. See Section 5735 of the Code. That the statutory law with reference to change of venue from one justice to another is applicable when the action is brought before a mayor, see Finch v. Marvin, 46 Iowa 384. It is provided by Section 13569 of the Code that, before any testimony is heard, a change of place of trial may be applied for by an affidavit filed, stating that the defendant cannot obtain justice before the justice of the peace (mayor). Section 13570 of the Code provides: "If such affidavit be filed, the change of place of trial must be allowed." (The italics are ours.) Under the provisions of the section just quoted, it was the mandatory duty of the mayor to sustain appellant's motion and grant the change of venue. It is not contended by the appellee, in argument, that his action in refusing the change of venue was correct. His contention is as made in his motion to annul, hereinbefore referred to, while the appellant's contention is that he has the right to relief by certiorari. It is provided by Section 12456 of the Code that a writ of certiorari may be granted in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy.

The mayor certainly had jurisdiction to determine the question raised by appellant's motion for change of venue. While the action of the mayor in overruling said motion was erroneous, did said erroneous action constitute an illegality within the meaning of Section 12456 of the Code? In Tiedt v. Carstensen, 61 Iowa 334, 16 N.W. 214, this court made the following pronouncement:

"In a word, if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally. But if a discretion is conferred upon the inferior tribunal, its exercise cannot be illegal."

In the instant case, no discretion was vested in the mayor; for, the appellant having complied with the statutory law, it was then that officer's mandatory duty, within the provisions of said law, to grant the change of venue. In Timonds v. Hunter, 169 Iowa 598, 151 N.W. 961, an action had been brought against the plaintiff therein for the appointment of a guardian for him. A jury was demanded, and denied by the court, and relief was asked in this court by certiorari; and we held that the action of the court in denying a jury constituted an illegality within the meaning of the then Section 4154 of the Code (now Section 12456). We there said:

"The line of demarcation between a merely erroneous conclusion and an illegality for which no other adequate remedy is provided cannot be very exactly defined. * * * It is generally true that illegality or excess of jurisdiction, if any, is necessarily preceded by an erroneous conclusion. If the erroneous conclusion results in an illegality, within the meaning of Section 4154 [now Section 12456], then there is an illegality, and not merely an erroneous conclusion. The right to a jury trial in this case was an explicit statutory right. The defendant was deprived of it as effectively as if the refusal had been arbitrary."

Likewise in the instant case, the appellant was entitled to a change of venue, and was deprived of it as effectively as if the refusal had been...