Tuttle v. Pockert
| Decision Date | 09 April 1910 |
| Citation | 125 N.W. 841,147 Iowa 41 |
| Parties | E. V. TUTTLE, Plaintiff, v. J. POCKERT, EMMA POCKERT and certain premises, Appellants |
| Court | Iowa Supreme Court |
Appeal from Carroll District Court.--HON. 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.
L. H Salinger, for appellants.
M. S Odle, for appellee.
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 a 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 denies him the right to present his evidence in resistance to the application for a temporary writ by depositions that such right inheres in the constitutional jurisdiction of this court, and that no statute can deny it. The fundamental difficulty with the appellant's claim is that it is based on an erroneous contention that he is and was entitled to present his evidence in the form of depositions on the final hearing. Section 2405 provides for the issuance of an injunction whenever it is made to appear to the court that a nuisance exists, as defined in the chapter...
To continue reading
Request your trial