Tuttle v. Hutchison

• Decision Date: 23 March 1915
• Docket Number: 29227
• Citation: 151 N.W. 845,173 Iowa 503
• Parties: E. V. TUTTLE, Plaintiff, v. M. E. HUTCHISON et al., Defendants
• Court: Iowa Supreme Court

151 N.W. 845

173 Iowa 503

E. V. TUTTLE, Plaintiff, v. M. E. HUTCHISON et al., Defendants

No. 29227

Supreme Court of Iowa, Des Moines

March 23, 1915

REHEARING DENIED TUESDAY, JANUARY 18, 1916.

Certiorari from Carroll District Court.--M. E. HUTCHISON, Judge.

CERTIORARI proceedings from a finding of the district court of Carroll County adjudging respondents Judge and Bunting not guilty of a contempt of court in selling or keeping for sale intoxicating liquors contrary to law.--Annulled and Remanded.

Proceedings Annulled and Cause Remanded.

M. S Odle, for plaintiff.

L. H Salinger and Ralph Maclean, for defendant.

DEEMER, J. LADD, EVANS and GAYNOR, JJ., concur.

OPINION

DEEMER, J.

I.

In a proceeding in the district court of Carroll County, Joe Judge and M. Bunting were charged with contempt in having violated a decree of injunction previously entered by that court against the unlawful sale of intoxicating liquor. The contempt proceeding, which was a second one arising out of the original case, was commenced October 1, 1912. Hearing was had in the district court on December 6, 1912, Hon. M. E. Hutchison being the presiding judge; and on January 4, 1913, it being one of the days of the regular term of court, judgment was entered holding that, under the pleadings and proof, the defendants, Judge and Bunting, were not guilty of contempt, and they were discharged. Following this action, an application for a writ of certiorari, directed to "M. E. Hutchison, Judge of the District Court of Iowa, in and for the Sixteenth District", was made to and granted by a member of this court, and a transcript of the records of the lower court was certified to this court by Judge Hutchison.

In this court, there have been filed, in the name of M. E. Hutchison, Judge, objections to the jurisdiction of this court to entertain or decide this case, urging, among other reasons, that the record shows that the action sought to be reviewed was had and done before the district court, and no writ has been applied for or issued to that tribunal, but to the judge thereof; and the record shows that M. E. Hutchison, as such judge, has never entertained the proceedings complained of nor made the order which is now sought to be reviewed.

II. The office of the writ of certiorari is to bring before the reviewing court the records of an inferior tribunal, board or officer exercising judicial functions, when it is alleged that proper jurisdiction has been exceeded. Code Section 4154. In cases like the present one, arising out of an alleged violation of an injunction against the sale of intoxicating liquor, the only method of review is by certiorari. Currier v. Mueller, 79 Iowa 316, 44 N.W. 555. While Code Section 2407 provides that, in case of the violation of an injunction issued under the act regulating the sale of intoxicating liquor, the court or, in vacation, a judge thereof, may summarily try and punish the offender, it by no means follows that "the court or judge thereof" are interchangeable terms; for the jurisdiction of the latter in such matters attaches only in vacation. The trial in the proceedings which are now sought to be reviewed was in the district court in term time, and Judge Hutchison was its presiding officer. It is true that certiorari proceedings are, as said in Tod v. Crisman, 123 Iowa 693, 702, 99 N.W. 686, "leveled at the tribunal, board or officer alleged to have exceeded the jurisdiction or authority conferred by law, and ordinarily, these are to be deemed proper parties defendant of record"; it is, nevertheless, everywhere recognized that every process, especially every writ of certiorari, must run against and act upon the person. As said in Chambers v. Lewis, 9 Iowa 583, "The writ does not act upon the officer as such. Though the command be to do or to correct an official act, yet it is directed to the person."

In State v. Weber, (Minn.) 37 N.W. 949, objection was raised that the writ issued to the judge, instead of to the court, and of this, the opinion says:

"The objection . . . goes only to a matter of form, and is not well taken. Where there is a proceeding in a court and it has only one judge, he has the direction and control of the record; and the mandate of this court requiring him, as such judge, to certify the record and proceeding to this court is, in substance and effect, a direction to his court to so certify."

The force of the opinion is not minimized by the fact that there are two judges of the district court in the district of which Carroll County is part, for the reason that the district court in session in any county of this state consists of but one judge (Code Section 241), except, perhaps, in some counties having two or more judges. In the latter counties, it is apparent that a writ running to the district, without reference to the presiding judge of the court, would be likely to accomplish nothing, save, perchance, it might fall into the hands of the proper judge,--the judge whose action as a court was challenged. The general practice in this state, since the opinion was pronounced in the Chambers case, supra, has been to issue such writs to the district judge presiding, by name. See Fagg v. Parker, 11 Iowa 18; Allen v. Church, 101 Iowa 116, 70 N.W. 127; Lloyd v. Spurrier, 103 Iowa 744, 72 N.W. 688; Bardes v. Hutchinson, 113 Iowa 610, 85 N.W. 797; Vette v. Byington, 132 Iowa 487, 109 N.W. 1073; Le Grand v. Fairall, 86 Iowa 211, 53 N.W. 115; Callanan v. Lewis, 79 Iowa 452, 44 N.W. 892; Butterfield v. Treichler, 113 Iowa 328, 85 N.W. 19; U.S. S. Voting Machine Co. v. Hobson, 132 Iowa 38, 109 N.W. 458; Berkey v. Thompson, 126 Iowa 394, 102 N.W. 134; Oyster v. Bank, 107 Iowa 39, 77 N.W. 523; Davis v. Preston, 129 Iowa 670, 106 N.W. 151; Coffey v. Gamble, 134 Iowa 754, 94 N.W. 936; Denmead v. Parker, 145 Iowa 581, 124 N.W. 780; Boynton v. Church, 148 Iowa 197, 127 N.W. 210; Russell v. Anderson, 141 Iowa 533, 120 N.W. 89; Hemmer v. Bonson, 139 Iowa 210, 117 N.W. 257; Brown v. Powers, 146 Iowa 729; Lewis v. Brennan, 141 Iowa 585, 120 N.W. 332; Dugane v. Smith, 140 Iowa 674, 119 N.W. 73; Sawyer v. Hutchinson, 148 Iowa 449, 126 N.W. 798. As sustaining the practice here adopted, see County of Brown v. Land Co., 38 Minn. 397.

In State ex rel. v. City of Milwaukee, 57 N.W. 45, the Supreme Court of Wisconsin, in speaking of a writ of certiorari which had been directed to the city of Milwaukee and to George R. Mahoney as city clerk, said:

"By Section 1, c. 4, of the city charter of Milwaukee, it is provided that 'the municipal government of the city shall be vested in the mayor and common council', and the common council is a continuing body (Section 2, c. 4, City Charter) and has the control of all its records and papers, while the city clerk has the custody thereof, and of the corporate seal, and is a mere ministerial officer, without any judicial or quasi judicial power. It is a general rule that the writ of certiorari cannot go to a mere ministerial officer, save in exceptional cases, as where the body or board whose acts are sought to be reviewed is not a continuing one, or has ceased to exist, and such ministerial officer has the proper custody of the record or proceeding sought to be reviewed. Such was the case of Iron Co. v. Schubel, 29 Wis. 444, explained in State v. Common Council of Fond du Lac, 42 Wis. 287, 294. The latter was a case identical with this, in respect to the direction of the writ, and conclusively shows that in this case the writ should have been directed to the common council, and not to the city clerk. The fact that the writ is directed also to the city as a corporate body will not obviate the objection. The city in its corporate capacity has no judicial or quasi judicial power in the premises, and for that reason, the writ should not have been directed to it. The error of directing such a writ to the corporation in street cases was noticed and held fatal in Bogert v. Mayor, etc., 7 Cow. 158; In re Mt. Morris Square, 20 S.C. L. 1, 2 Hill 1. The authorities are very numerous to the effect that, where the acts of a corporate board or of corporate officers are the proper subject of review by writ of certiorari, the writ must be directed to such board or officers, and not to the corporation. 5 Wait Pr. 471; Mechem, Pub. Off., Secs. 1001, 1007, and cases cited; In re Mt. Morris Square, 20 S.C. L. 1, 2 Hill 1."

See, also, Commonwealth v. Winthrop, 10 Mass. star page 177.

Our statute provides for the service of the writ upon the defendant, and such defendant must perforce be some person upon whom service may be made. If it runs to the district court alone, upon whom is service to be made? Manifestly not upon the clerk, for he is a mere ministerial officer. Young v. Crane, (N. J.) 67 N.J.L. 453, 51 A. 482; State v. McGovern, (Wis.) 100 Wis. 666, 76 N.W. 593. If upon anyone, it must, therefore, be the judge; for none of the other officers of the court have anything to do with the proceedings. Moreover, it is the doctrine of this court that even though the form of the writ be erroneous, yet if, in response to it, defendant brings for review all the facts before the court which were considered, no prejudice can result on account of such error. Richman v. Board, 70 Iowa 627, 26 N.W. 24. And an appearance to the writ cures any defects therein or in the service thereof. Remey v. Board, 80 Iowa 470. Authorities may be found, holding that such a writ should be directed to the court, and not to the judge, when an act of the court is to be reviewed. See Onesti v. Freelon, 61 Cal. 625; Fraser v. Freelon, 53 Cal. 644; Livingston v. Livingston, 24 Ga. 379; People v. Brennan, 79 Mich. 362, 44 N.W. 618. These cases seem to be based upon statutes; but if not, we should not be disposed to follow...