Young v. Rothrock

• Decision Date: 29 October 1903
• Parties: F. M. YOUNG v. J. H. ROTHROCK, Judge of the Superior Court of the City of Cedar Rapids, Defendant, AND F. M. YOUNG, Appellant, v. CHADIMA BROS., Appellees
• Court: Iowa Supreme Court

96 N.W. 1105

121 Iowa 588

F. M. YOUNG v. J. H. ROTHROCK, Judge of the Superior Court of the City of Cedar Rapids, Defendant, AND F. M. YOUNG, Appellant, v. CHADIMA BROS., Appellees

Supreme Court of Iowa, Des Moines

October 29, 1903

ORIGINAL certiorari proceedings in this court to review the action of Hon. J. H. Rothrock, Judge, in discharging one J. T. Chadima from a charge of contempt in violating a writ of injunction issued against him; and also an appeal from an order dissolving a temporary writ of injunction issued in the second case above entitled, of "Young, appellant vs Chadima Bros."--Reversed.

REVERSED.

W. E Steele and John A. Reed for plaintiff and appellant Young.

Redmond & Stewart for defendant Rothrock and for appellees Chadima Bros.

OPINION

DEEMER J.

On the 23d day of December, 1901, there was issued out of the district court of Linn county, Iowa in an action wherein F M. Young was plaintiff and J. T. Chadima was defendant, a writ of injunction restraining the said Chadima from maintaining, using, or operating an obstruction in First Street West, in the city of Cedar Rapids, more particularly described as an ice chute or tramway, which ran across the street. December 28th of the same year a motion to dissolve the injunction was heard, and it was ordered that the motion be overruled, and that the temporary writ be made perpetual. It was further ordered that defendant be allowed to use the ice chutes until Monday, December 30, 1901, at twelve o'clock noon of said day, and that such use should not be a violation of said writ; and it was further ordered that at said time, to wit, December 30, 1901, twelve noon, the defendant should remove said obstruction from said street and sidewalk. On January 12, 1902, plaintiff filed an application charging Chadima with violation of the order. An attachment issued, which was duly served, and thereupon Chadima appeared, and filed a written excuse for his alleged violation of the writ, in which he stated, in substance, that he had made application to the district court of Linn county for a modification of the injunctional order, and asked that the proceedings for contempt be suspended. He also pleaded that he be permitted to proceed with the operation of his ice chute until his motion could be heard. He further pleaded that the proceedings for violation of the injunction were without jurisdiction; that he acted in good faith in operating the chute, under the authority and permission of the city council of the city of Cedar Rapids, and with the least possible obstruction to travel. On January 14, 1903, plaintiff commenced the second action above entitled for an injunction against Chadima Bros., restraining them from operating an ice chute across the aforesaid First street. A temporary writ of injunction was issued on this petition as prayed, and thereafter the defendants filed an answer to the petition, denying the alleged nuisance, pleading municipal authority, and other matters to which we shall hereafter refer; and thereafter a motion to dissolve the temporary writ of injunction issued in the second case as above entitled. The contempt proceedings and the motion to dissolve in the second case seem to have been tried together, resulting in the discharge of J. T. Chadima and the sustaining of the motion to dissolve. The original certiorari proceeding is to review the action of the defendant judge in making the order for discharge, and the appeal in the second case is from the ruling dissolving the temporary writ of injunction issued in that proceeding.

There is no doubt that J. T. Chadima violated the terms of the original writ of injunction issued by the district court of Linn county, and that he should have been punished therefor, unless it be for some matter of excuse presented by him. He says that at the time he violated the writ he had filed a motion to modify the terms of the original order. But this is manifestly no excuse. If it were, then all that one need do who has been enjoined from the performance of a particular act is to file a motion to modify the order, and from that hour he may proceed with impunity to violate the terms of the writ. The statement of the proposition is all that is necessary to demonstrate its unsoundness.

Next, he contends that he complied with the injunctional order by changing the method of the construction of the chutes; not that he removed them, but that he so altered their construction as that they did not interfere with public travel on the street. This view overlooks the form of the injunctional order, which restrained defendant from using or operating an ice chute in the street after December 30, 1901, and further directed that the same should be removed from the street and sidewalk. A mere change in the construction of the chute did not amount to a removal, nor did it authorize Chadima to operate it in its changed condition. He was restrained from using or operating the same on the street. The change made in the construction did not entirely obviate the dangers to be apprehended from its use, and there is no doubt that its use, under the circumstances disclosed in evidence, was in violation of the terms of the injunction.

Lastly it is insisted that the district judge who ordered the original writ gave Chadima verbal permission to make use of the street in the manner he did. All that is claimed in this connection is that the judge said that the use made of the street, if with the permission of the city council, would not be contrary to the terms of the writ. No claim is made that Judge Thompson ever in fact made an order modifying his direction and order for the writ, or that he was even asked to do so, before Chadima proceeded with the use of the ice chute. He was simply asked for a construction of an order which had passed beyond his control, and, as we understand it, said that, if the city council gave Chadima permission to use an ice chute across the street, it would not be a violation of the terms of the injunction. Manifestly, this would not be a legal excuse for the violation of the injunction. Such fact might, no doubt, be considered in mitigation, but it did not amount to a dissolution or modification of the injunction, and until there was some such order it was the duty of Chadima to obey the commands of the writ. This is fundamental. Langworthy v. McKelvey, 25 Iowa 48; Lake v. Wolfe, 108 Iowa 184, 78 N.W. 811. Chadima's good faith is no excuse, but no doubt may be considered in fixing the penalty to be imposed for violation of the writ. Hawkins v. State, 126 Ind. 294 (26 N.E. 43); Cartwright's Case, 114 Mass. 230; Des Moines Co. v. Des Moines Co., 74 Iowa 585, 38 N.W. 496. The order discharging J. T....