Uhl v. District Court in and for Monona County
| Decision Date | 17 March 1942 |
| Docket Number | 45875. |
| Citation | 2 N.W.2d 741,231 Iowa 1046 |
| Parties | UHL v. DISTRICT COURT IN AND FOR MONONA COUNTY et al. |
| Court | Iowa Supreme Court |
Welch, Acrea & Welch, of Logan, and B. H Morrison, of Mapleton, for petitioner.
John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., of Iowa, and Elbert M. Prichard, of Onawa, for respondents.
Petitioner was indicted by the grand jury of Monona County for obstructing a drain or watercourse. He moved to set aside and quash the indictment upon the ground that a person not permitted by law was present before the grand jury during the investigation of the charge contrary to the provisions of Sub. 6 of Section 13781, Code of Iowa 1939. The motion alleged that the county attorney was attorney for a private party in a pending proceeding based upon substantially the same facts as the indictment, that he was, therefore, within the prohibition of Code Section 5180.3, and that he was present before the grand jury during the investigation of the charge in contravention of Section 13781. After a hearing at which evidence was introduced, the district court overruled said motion. To review said order, petitioner has instituted this original proceeding in certiorari against said district court and D. C. Browning, judge thereof.
Petitioner and Brenner, the prosecuting witness, have owned adjoining farms for many years. There was an injunction suit between them in 1925, involving the blocking or diversion of surface waters. The decree ordered Brenner to remove a dam from a ditch. Although this ditch was along a line other than that described in the indictment against petitioner it was contended there was evidence that it involved the same watershed. The present county attorney had no connection with that case. However, in 1937, he appeared for Brenner in answer to a show cause order for alleged violation of the 1925 decree. That proceeding was terminated by a court order dismissing the application for contempt and reciting an agreement in open court concerning the ditch there involved. That was the only matter in which the present county attorney represented Brenner and it was entirely closed in 1937. The indictment against petitioner was returned in 1940. Perhaps it should be said that before the indictment was voted the county attorney frankly informed the grand jury of his former connection with the civil suit and told them he did not like to give them an opinion on the matter.
Respondent has moved to annul the writ upon the ground that certiorari will not lie to review the order overruling the motion to set aside the indictment. Because of the conclusion hereinafter reached that the motion to annul the writ should be sustained, the correctness of the ruling of the trial court will not be determined or considered.
Code Section 12456, Code of Iowa, 1939, provides: "The writ of certiorari may be granted when authorized by law, and 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 petition for the writ of certiorari in this case adopts the foregoing statutory language in assailing the ruling of the trial court upon the motion to quash the indictment. However, the employment of the language of the statute is not, in itself sufficient to entitle a petitioner to the remedy by certiorari. In determining whether or not such remedy is available to a petitioner the court will look behind the words of the petition and base its ruling upon the sufficiency of the facts presented to it.
Section 13781 provides that the motion to set aside the indictment "can be made" before a plea is entered. A former statute did not contain the words above italicized but provided that if the motion be not so made "the defendant is precluded from afterward taking the objections * * *." Sections 4691 and 4694, Rev. of 1860. State v. Kimball, 29 Iowa 267, decided thereunder, holds an objection that an unauthorized person was present before the grand jury, not made before plea, will not be considered. Decisions under the present statute are to the same effect. State v. Twine, 211 Iowa 450, 456, 233 N.W. 476, 479; Parenti v. District Court, 198 Iowa 560, 563, 199 N.W. 259, 260. Therefore, it is clear that a failure to comply with the statute in the particular here alleged would not ipso facto render the indictment invalid or deprive the court of jurisdiction to proceed with the case but would constitute merely an irregularity or defect to which timely objection might be made as provided by statute.
Petitioner points to the language of Section 13781 "and must be sustained" as being mandatory upon the trial court. He asserts that when any of the statutory grounds are alleged and supported by competent proof, the court acts illegally and in excess of its jurisdiction if it overrules the motion. But whether the allegation is "supported by competent proof" is usually a question of law or fact or both, to be determined by the trial court. For example, in this case whether the county attorney's former connection with the contempt proceeding three years previously brought him within the prohibition of Section 5180.3, was a question for the determination of the trial court. If the trial court found the county attorney was not a person prohibited from being present before the grand jury, the mandate of Section 13781 would not apply and the overruling of the motion would be required. And where a court has overruled a motion to set aside an indictment, predicated upon a ground of this section, it will ordinarily be presumed that such ruling was based upon the judicial determination that the alleged ground was not established. A court may err in this determination with the result that the ruling based thereon would be wrong. ...
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