Witmer v. Dist. Court, Polk Cnty.

• Decision Date: 07 May 1912
• Citation: 136 N.W. 113,155 Iowa 244
• Parties: WITMER v. DISTRICT COURT, POLK COUNTY.
• Court: Iowa Supreme Court

155 Iowa 244

136 N.W. 113

WITMER

v.DISTRICT COURT, POLK COUNTY.

Supreme Court of Iowa.

May 7, 1912.

Certiorari from District Court, Polk County; Lawrence De Graff, Judge.

This is an original proceeding in this court by certiorari to secure the review of the action of the district court of Polk county in making an order punishing the petitioner for contempt in refusing as a witness to answer certain questions propounded to him on the trial of an appeal to that court from the action of the county treasurer in which this petitioner was assessed for delinquent taxes for the years 1904 to 1908, inclusive. Dismissed.I. M. Earle and E. D. Samson, both of Des Moines, for petitioner.

Clark & Hutchinson, of Des Moines, for respondent.

McCLAIN, C. J.

Counsel for the petitioner in their argument set out at considerable length the proceedings of the lower court as shown by the record and discuss many propositions of law, some of which in the view we now take of the case need not be noticed. For present purposes, the following brief statement is a sufficient basis for the conclusions which we find it necessary to announce in disposing of the petitioner's contentions:

In a proper proceeding before the county treasurer of Polk county this petitioner was required to pay taxes on property omitted from assessment during the years 1904 to 1908, inclusive, to the extent of $25,575.94; the property thus found to have been omitted from assessment consisting of shares of corporate stock in a company not organized under the laws of Iowa. From this finding of the county treasurer this petitioner appealed in due form to the district court of Polk county, and, on the hearing of the matter of said appeal, petitioner was sworn as a witness in his own behalf, testifying, in substance, that although the shares of stock in question in the American Type Founders' Company chartered under the laws of New Jersey as well as other shares of stock in the same corporation on which he had paid taxes as owner stood in his name on the books of the company for the years for which they had not been assessed to him or any other owner, having been originally purchased by him about the years 1897, 1898, and 1899, as a matter of fact the shares thus omitted from assessment were not purchased by him with his own money, but with the money of others who were and continued to be nonresidents of the state of Iowa, and that the certificates for such shares of stock were immediately delivered by him to such persons with powers of attorney for the transfer of the certificates on the books of the company; and, further, that during the years in question he voted such shares of stock either personally or by proxy at stockholders' meetings and received dividends thereon, which he paid over to the persons entitled thereto. On cross-examination the witness was asked to state the names of the persons for whom the purchases were made and to whom the dividends were sent, and he objected to giving such information for various reasons, among others that the questions calling for it were not proper on cross-examination; that the facts called for were immaterial, irrelevant, and incompetent; and that the relation of the witness to the owners of the stock was one of confidence and the transaction of its purchase in the nature of a trade secret, the disclosure of which might be injurious to the owners of this stock, who, as stockholders in rival concerns, desired to conceal the fact of their ownership of this stock. The witness offered to produce all letters and checks in his possession relating to the transmission of dividends to the owners of the stock except that he would not disclose the names of such persons, and he offered to furnish to the court privately the names called for, for the purpose of enabling the court to determine whether they were material, with the understanding that the names thus furnished should not be disclosed by the court to any one else. The court thereupon adjudged the witness (this petitioner) to be in contempt in refusing to answer the questions propounded to him, and sentenced him to imprisonment in the county jail until answers to such questions were made, suspending the punishment, however, until it could be determined on writ of certiorari to this court whether such order of commitment was legal.

It is conceded that the district court of Polk county had jurisdiction to try the appeal from the assessment of taxes by the county treasurer against this petitioner, and that on such trial the petitioner, having testified as a witness, was properly subject to cross-examination, and that the various questions propounded to him on cross-examination which he refused to answer were questions as to the competency of which the court was called upon to make rulings, which rulings were adverse to the objections interposed on behalf of the witness.

[1] The important question, as we think, arising in the present proceeding for writ of certiorari, is whether the correctness of the rulings of the lower court can properly be tested in this manner. The writ of certiorari is one which may be granted by this court when directed to the district court in cases “authorized by law and in all cases where” the district court “is alleged to have exceeded” its proper jurisdiction “or is otherwise acting illegally, and there is no other plain, speedy and adequate remedy,” and the petition therefor must state facts constituting a case wherein the writ may issue. Code, §§ 4154-4157. It is further provided that “no appeal lies from an order to punish for a contempt, but the proceedings may in proper cases be taken to a higher court for revision by certiorari.” Code, § 4468. The contention for the petitioner is that, when the district court makes an order punishing a witness for contempt in refusing to answer questions propounded to him, a writ of certiorari to review the legality of such order is “authorized by law,” and that in such proceeding this court may be required to determine whether the district court was in error in overruling the objections to the questions propounded to the witness, and requiring that answers thereto be made under the penalty of a punishment for contempt in refusing to answer.

It seems to us that this contention has already been substantially answered in prior decisions of this court holding that it is unfounded. In the case of Finn v. Winneshiek County, 145 Iowa, 157, 123 N. W. 1066, it was said that a writ of certiorari is not intended to supplant the ordinary remedy of appeal, and will not lie to correct rulings of an inferior tribunal which are simply erroneous, and that, where a party has a right of review by appeal, he cannot ordinarily proceed by certiorari, and, further, that rulings of a trial court in determining that questions asked of a witness are proper on cross-examination, and do not call for incompetent, immaterial, and irrelevant testimony, can be corrected on appeal, and are not therefore subject to review in an independent proceeding by certiorari, quoting from the opinion in the case of Tiedt v. Carstensen, 61 Iowa, 334, 16 N. W. 214, in which it was held that, if the trial court is clothed with authority to decide such questions, its decision with reference thereto is not illegal in the sense that it may be reviewed by certiorari. It is true that in the Finn Case the question arose upon a motion and application to the court for an order compelling the witness to answer, the ruling of the court being that the witness should...