State v. One Certain Auto.
| Decision Date | 29 July 1946 |
| Docket Number | 46839. |
| Citation | 23 N.W.2d 847,237 Iowa 1024 |
| Parties | STATE v. ONE CERTAIN AUTOMOBILE. |
| Court | Iowa Supreme Court |
Rehearing Denied Sept. 23, 1946.
Chas P. Howard, of Des Moines, for appellant.
John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and Vernon Seeburger, Co. Atty., and E. S. Thayer, Asst. Co. Atty., both of Des Moines, for appellee.
On May 4 1944, pursuant to section 127.10, Code 1946 [1] , section 2009, Code 1939, one McClelland filed with the Polk county district court an information under oath stating that a certain Ford automobile was on April 29, 1944, in said county employed in the transportation of liquor in violation of law and because of such use was at that time and place seized and is now in the custody of the sheriff of Polk county; to affiant's best knowledge and belief said automobile belongs to Don Madero. The information asked that the automobile be dealt with as provided by law.
On June 22, 1944, Don Madero filed an affidavit entitled 'Notice of Ownership' stating that he is the owner of the automobile and if it was being employed in the unlawful transportation of intoxicating liquors, such use was without his knowledge or consent, directly or indirectly. See section 127.11, par. 3, Code 1946, section 2010, Code 1939.
Trial was had to the court on October 2, 1944. Two police officers testified that on April 29, 1944, they saw the automobile in question while driven in Des Moines by one Clyde Vaughn who was arrested when certain liquor bearing Illinois seals was found in the car; both Madero and Vaughn were employed by Johnny Critelli, a Des Moines tavern operator, Madero as manager of one of the taverns. A chemist testified he analyzed the contents of one of the bottles found in the car and it was intoxicating liquor.
At the end of the state's evidence, Madero moved for 'a directed verdict' in his favor because, 'there being no denial of his answer, it stands as admitted * * * under the new rules.' The 'answer' to which the motion referred is Madero's affidavit entitled 'Notice of Ownership.' Madero's motion was overruled. He offered no evidence and the court entered judgment of forfeiture and for sale of the automobile. Upon this appeal, the overruling of this motion is assigned as error.
I. We first consider the overruling of appellant Madero's motion for continuance, which is also assigned as error. The facts relating to this complaint are these: Apparently the time of hearing on the information was first set for June 26, 1944, but no hearing was then held and the matter was assigned to be heard on September 28, 1944. The attorney who first represented appellant withdrew and his present counsel asked for a continuance until September 30, which was granted. On that date a motion for continuance was filed 'until such time as the witness Clyde Vaughn is available.'
Attached to the motion for continuance is Madero's affidavit which repeats most of the statements in the affidavit entitled 'Notice of Ownership' and also states in substance: Vaughn is in the military service of the United States; 'his address I'm unable to ascertain; he is an important witness on my behalf; I desire his testimony that he had been inducted into the army and expected to leave in a short while; he desired to spend some time with his girl that day and wanted to borrow my automobile to take her places and visit friends; Vaughn was to return my car before my work hours were over; I had no knowledge or information as to his going to any other place than his girl's house nor that he expected to get any liquor or have it in my automobile; I did not consent that he transport any liquor in my car; his use of my car was without reward to me.'
The overruling of the motion for continuance presents no reversible error. A motion for continuance is addressed to the sound legal discretion of the trial court and we will not interfere with a ruling thereon unless it clearly and affirmatively appears there has been an abuse of such discretion and injustice thereby done. Gaynor v. Magoun, 229 Iowa 134, 135, 294 N.W. 256; In re Estate of Rogers, 226 Iowa 183, 185, 283 N.W. 906; Twaites v. Bailly, 210 Iowa 783, 785, 231 N.W. 332, and cases cited. See also 12 Am.Jur. 450, section 5; 17 C.J.S., Continuances, § 5, p. 191.
When the cited cases were decided, sections 11442-11444, Code 1939, were in force. These statutes have been superseded by Rules 182, 183, Rules of Civil Procedure. But the doctrine of the cited cases is equally applicable under the Rules.
Rule 182(a) provides, 'Motions for continuance shall be filed without delay after the grounds therefor become known to the party or his counsel. * * *.' It appears here that appellant knew Vaughn was in the military service when the notice of ownership was filed on June 22, 1944. The grounds of the motion were then known to appellant, yet no motion for continuance was filed until September 30, the day set for trial. This circumstance in itself affords sufficient basis for the denial of a continuance. See Robyn v. Van der Weide, 178 Iowa 608, 610, 611, 159 N.W. 1034; Percival-Porter Co. v. Oaks, 130 Iowa 212, 219, 106 N.W. 626; Bays v. Herring, 51 Iowa 286, 287, 1 N.W. 558; 17 C.J.S., Continuances,§ 87, p. 256; 12 Am.Jur. 476, section 37.
Rule 183(b), quite similar to section 11444, Code 1939, states: 'All such motions based on absence of evidence must be supported by affidavit * * *, and must show: (1) The name and residence of the absent witness, or, if unknown, that affiant has used diligence to ascertain them; (2) What efforts, constituting due diligence, have been made to obtain such witness or his testimony, and facts showing reasonable grounds to believe the testimony will be procured by the next term; (3) What particular facts, distinct from legal conclusions, affiant believes the witness will prove, and that he believes them to be true and knows of no other witness by whom they can be fully proved.' Appellant made no attempt to show that he used diligence to ascertain Vaughn's address, or to obtain his testimony. No facts are stated in the motion or affidavit attached thereto 'showing reasonable grounds to believe the testimony will be procured by the next term,' in accordance with (2) above. Likewise there was no showing that appellant knows of no other witness by whom the facts can be fully proved, in accordance with (3) above.
According to the affidavit attached to the motion appellant wanted Vaughn to testify principally to the use he was to make of the car and appellant's claimed lack of knowledge that liquor was to be transported in it. Obviously the arrangement between appellant and Vaughn for the latter's use of the car as well as appellant's claimed lack of knowledge regarding the liquor were as fully known to appellant as to Vaughn. Yet appellant did not testify and the reason given therefor is not convincing.
The basis of appellant's claim is not 'that said conveyance was not being employed, when seized, in the unlawful transportation of intoxicating liquors,' but 'that if it was being so employed such use was without the knowledge or consent, directly or indirectly, of said claimant.' See section 127.11, par. 3, Code 1946, section 2010, Code 1939. Appellant's failure, without adequate explanation, to testify to the matters within his knowledge rather confirms our conclusion that there was no abuse of discretion in denying a continuance. Twaites v. Bailly, 210 Iowa 783, 783, 231 N.W. 332.
It is worthy of mention that a criminal charge growing out of the transaction in question is pending against Vaughn and he would hardly be a disinterested witness in the present case.
No question involving the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.Appendix, § 501 et seq., is presented to us.
II. Nor do we think it was error to overrule appellant's motion 'for directed verdict.' The provision of the Rules of Civil Procedure upon which appellant relies is Rule 102 which reads:
Appellant contends his affidavit entitled 'Notice of Ownership' was an answer--a pleading--and since there was no denial in a subsequent pleading of the facts stated in the affidavit they must be deemed admitted. But we think Rule 102 is not applicable here.
Neither the information nor the claim of ownership can fairly be called a pleading, within the contemplation of Rule 102. The various provisions of Division IV of the Rules, of which 102 is part make this clear. We will mention a few of these provisions. Rule 68 lists the allowable pleadings as 'petition, answer, and such counterclaim, reply, amendment, cross-petition or petition of intervention, as these Rules allow.' These are the usual pleadings in actions at law and in equity. Rule 70 requires that 'The petition shall state...
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