Tuttle v. Pockert

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSHERWIN
PartiesTUTTLE v. POCKERT ET AL.
Decision Date09 April 1910

147 Iowa 41
125 N.W. 841

TUTTLE
v.
POCKERT ET AL.

Supreme Court of Iowa.

April 9, 1910.


Appeal from District Court, Carroll County; F. M. Powers, Judge.

Action in equity to enjoin the defendants from the illegal sale of intoxicating liquors. The defendants appeal from an order granting a temporary writ. Affirmed.

See, also, 121 N. W. 1057.

[125 N.W. 841]

L. H. Salinger, for appellants.

M. S. Odle, for appellee.


SHERWIN, J.

The plaintiff alleged that the defendant J. Pockert kept on premises owned by the defendant Emma Pockert intoxicating liquors with the intent to sell the same, in violation of law. Both a temporary and a permanent writ were asked. The defendants answered, and thereafter filed a motion for a continuance for the purpose of presenting their evidence in the form of depositions. The court ordered a continuance as to the final hearing, but also ordered that a temporary writ issue as provided by law restraining the defendant J. Pockert from keeping and maintaining a nuisance by the unlawful sale of intoxicating liquors. The temporary writ was issued under the express authority of section 2405 of the Code, which says that, when the hearing of the application for an injunction is continued at the instance of the defendant, a temporary writ “shall be granted as a matter of course.”

The appellants say that this statute is unconstitutional because it deprives a defendant in such a case of his “constitutional right to review de novo on appeal, by taking a temporary writ of injunction against him as a penalty for taking time to secure depositions upon which to base such review; and section 2405 * * * is repugnant to the constitutional grant of chancery jurisdiction to the Supreme Court in permitting this.” They further say that, even if said section is constitutional, it was error to issue a temporary writ in this instance because the hearing on the application for such temporary writ had not been continued at the instance of the defendant. While the appellants' argument is devoted almost entirely to a consideration of the constitutionality of section 2405, the appellees make no reference to the subject in their argument, and we might well conclude that the point is conceded by them. But the interests of the public and our duty demand that we sustain the validity of the statute, if it should be sustained, notwithstanding the neglect of counsel or his mistaken view of the law. The appellant claims that section 2405 is unconstitutional because it...

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8 practice notes
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...it should be so far overruled. But concessions may not settle for the court what public law is. See Tuttle v. Pockert, 147 Iowa, 43, 125 N. W. 841. One applicant for bail might not be able to get the concessions obtained by another, and the people of the state are entitled to know what is t......
  • Taylor v. Indep. Sch. Dist. of Earlham, No. 31854.
    • United States
    • United States State Supreme Court of Iowa
    • October 29, 1917
    ...to object is in a sense consent, and that parties cannot settle by consent what public law is. See Tuttle v. Pockert, 147 Iowa, 43, 125 N. W. 841;Ford v. Dilley, 174 Iowa, 243, 156 N. W. 517;Heiman v. Felder, 160 N. W. 239;State v. Aloe, 152 Mo. 466, 54 S. W. 494, 47 L. R. A. 393. This rule......
  • West v. Bank of Commerce & Trusts, No. 5724.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 26, 1948
    ...of Equalization, 125 Neb. 841, 252 N.W. 313, 92 A.L.R. 658; People ex rel. Wray v. Grant, 48 Colo. 156, 111 P. 69; Tuttle v. Pockert, 147 Iowa 41, 125 N.W. 841; Attorney General v. Rice, 64 Mich. 385, 31 N.W. 203; Happel v. Brethauer, 70 Ill. 166, 22 Am.Rep. 70; Legg v. Annapolis, 42 Md. 20......
  • Doyle v. Wilcockson, No. 30614.
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1918
    ...And we have held frequently that parties may not bind this court by stipulating what the law is. Tuttle v. Pockert, 147 Iowa, 42, 43, 125 N. W. 841;Ford v. Dilley, 174 Iowa, 250, 156 N. W. 513. As to the waiver of defects in the original notice, such waiver, if made before the entry of judg......
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8 cases
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...it should be so far overruled. But concessions may not settle for the court what public law is. See Tuttle v. Pockert, 147 Iowa, 43, 125 N. W. 841. One applicant for bail might not be able to get the concessions obtained by another, and the people of the state are entitled to know what is t......
  • Taylor v. Indep. Sch. Dist. of Earlham, No. 31854.
    • United States
    • United States State Supreme Court of Iowa
    • October 29, 1917
    ...to object is in a sense consent, and that parties cannot settle by consent what public law is. See Tuttle v. Pockert, 147 Iowa, 43, 125 N. W. 841;Ford v. Dilley, 174 Iowa, 243, 156 N. W. 517;Heiman v. Felder, 160 N. W. 239;State v. Aloe, 152 Mo. 466, 54 S. W. 494, 47 L. R. A. 393. This rule......
  • West v. Bank of Commerce & Trusts, No. 5724.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 26, 1948
    ...of Equalization, 125 Neb. 841, 252 N.W. 313, 92 A.L.R. 658; People ex rel. Wray v. Grant, 48 Colo. 156, 111 P. 69; Tuttle v. Pockert, 147 Iowa 41, 125 N.W. 841; Attorney General v. Rice, 64 Mich. 385, 31 N.W. 203; Happel v. Brethauer, 70 Ill. 166, 22 Am.Rep. 70; Legg v. Annapolis, 42 Md. 20......
  • Doyle v. Wilcockson, No. 30614.
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1918
    ...And we have held frequently that parties may not bind this court by stipulating what the law is. Tuttle v. Pockert, 147 Iowa, 42, 43, 125 N. W. 841;Ford v. Dilley, 174 Iowa, 250, 156 N. W. 513. As to the waiver of defects in the original notice, such waiver, if made before the entry of judg......
  • Request a trial to view additional results

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