Allison v. Daugherty , 231 Iowa 955 ( 1942 )

Bliss, C. J.

On October 18, 1941, the writ was issued upon the order of this court, and the return was made and filed in the office of the clerk of this court on November 14, 1941. The matter comes before us on the return and the petitioner’s abstract, but without argument by either petitioner or respondents.

It appears that, upon application made for the appointment of a judge from another district to hear and determine a cause entitled Carson, Executor, v. Franklin, pending in the district court of Mahaska county, of the sixth judicial district of Iowa, the Honorable Oscar Hale, then chief justice of this court, on March 29, 1941, made the following order:

“It is hereby ordered that the Honorable Elmer K. Daugherty, one of the judges of the District Court in and for the Second Judicial District of Iowa, be and hereby is assigned to hold said Court from April 7, 1941, to such time as may be necessary to hear and determine said cause.”

This appointment was made under section 10784 of the 1939 Code of Iowa.

On March 31, 1941, the Honorable Frank Bechly, one of the judges of the sixth judicial district of Iowa, before going to Bloomfield to hold court for Judge Daugherty in the district court of Davis county, in the second judicial district of Iowa, in a letter to the latter giving information as to the action of Carson, Executor, v. Franklin, stated:

“While you are here [Mahaska district court] you had just as well take care of any routine matters that come up in this Court. I don’t know whether the order provided for that or not, but if any, then you can do that under the exchange of Judges Rule in force in Iowa, and this will be your authority so far as the Judges of this District are concerned for so acting. ’ ’

The judges-exchange rule referred to by Judge Bechly is section 10796 of the 1939 Code of Iowa.

Judge Daugherty was holding the Mahaska district court at Oskaloosa, Iowa, on April 7, 1941, when he approved a county attorney’s information, of William M. Spencer, county attorney of Mahaska county, charging S. C. Allison, the petitioner herein, with the crime of larceny in the nighttime in Mahaska county.

On April 26,1941, the said S. C. Allison, as defendant in the said criminal action, filed a motion to set aside the county attorney ’s information upon the ground that it had not been approved as required by section 13650 of the 1939 Code of Iowa. This section provides:

“The information, before being filed, shall be presented to some judge of the district court of the county having jurisdiction of the offense, which judge shall indorse his approval or disapproval thereon. * * *. ’ ’

The said .defendant alleged in this motion that Judge Daugherty, who had indorsed his approval on said information, was not a judge of the district court of Mahaska county. This motion came on for hearing before the respondent, Judge P. J. Siegers, in the district court of Mahaska county, Iowa, on October 6, 1941, and was by said court overruled. The return shows, by the certificate of the respondent, Judge Daugherty, that in indorsing his approval on said information he acted under the judges-ex-ehange order of Judge Bechly, and Code section 10796. While so acting, and so presiding over the district court of Mahaska county, on April 7, 1941, at the time he approved said information and indorsed his approval thereon, he was a judge of the district court of Mahaska county, in which county the offense charged was committed, within the purview of said Code section 13650.

The writ of certiorari is, therefore, annulled. — Annulled.

All Justices concur.