Whitlock v. Wade
| Decision Date | 21 May 1902 |
| Parties | S. WHITLOCK v. M. J. WADE, Judge |
| Court | Iowa Supreme Court |
Certiorari Proceedings, Iowa District Court.--HON. M. J WADE, Judge.
THIS is a certiorari proceeding to review the action of the defendant while acting as a judge in vacation.--Order annulled.
Popham & Havner and Remley & Ney for plaintiff.
Hedges & Rumple, J. T. Beem and J. C. Hume for defendant.
In the year 1900 a statement of general consent to the sale of intoxicating liquors was filed with the county auditor of Iowa county, which was afterward canvassed by the board of supervisors of said county, and on January 21, 1901, the said board found the statement was sufficient, and entered its finding of record. Plaintiff, a citizen appealed to the district court, and the said appeal was heard by the said court, the defendant presiding. It is said in the return that an agreement was made for a decision in vacation but as the court did not adjourn finally until September 6, 1901, no mention of this agreement was made in the record of the final decree. After the case was submitted, the trial judge prepared and filed a written opinion in which he held that the statements of consent were insufficient, and ordered an "enrolled decree." Subsequently forms of decree were prepared by counsel on either side of the controversy, and submitted to the defendant for signature. The one prepared by counsel who claimed the statements were sufficient provided for a suspension of the decree in the event an appeal was taken to this court. Objection was taken to the form of this decree, and the defendant notified the attorneys that he would hear them upon the form of the decree. Subsequently the attorneys appeared before the defendant in Johnson county, and he, the defendant, after some objections were made to a hearing before a decree was entered, prepared a decree, which, as we understand, was duly entered of record in the proper county, finding that the statement of consent was insufficient, and ordering the costs taxed against the principals and sureties on the bond given under the provisions of the "Mulct Law." The decree also contained the following: Following out the suggestion contained in this quotation, the defeated party filed an application for a supersedeas, which was entitled as in the district court of Iowa county, but filed, as we understand it, with the defendant as judge. Whitlock appeared before the defendant who was still in Johnson county, acting in his capacity as judge, and filed a motion attacking the application and a demurrer thereto. These pleadings were overruled, and after a hearing the defendant as judge made an order suspending the order theretofore made, and preserving the status of the parties as it was after the board had made its holding, and before the decree reversing its finding had been entered, provided the defeated party made an appeal to this court, prosecuted it with reasonable diligence, and filed a bond as security for costs. It appears that witnesses were brought from Iowa county, and their testimony offered before the judge on the application for a supersedeas. The return to the writ recites that the application was heard at Iowa City, because more convenient for the defendant and the attorneys, on account of the proximity of the large law library of the state university. Plaintiff's attorneys appeared before the judge at Iowa City and made resistance to the application as stated, but no objection was interposed to the jurisdiction of the judge.
The contention is that the defendant as judge had no power or authority to grant the supersedeas or to suspend his former order entered in term time in Iowa county, and that he acted illegally in ordering the same in this case, for the reason that the order was...
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