Part of Lot No. 294 in Ottumwa v. State , 1 Iowa 507 ( 1855 )

Wright, C. J.

The orders dismissing the writ of error, and the refusing the rule on the justice to allow the appeal, are now assigned for error. The first assignment raises the question, whether, under the Code, a writ of error as such, is allowed, to remove the proceedings of a justice in a case arising under this section, into the District Court for review. We do not think it is.

In the chapter regulating “the sale of intoxicating liquors,” under one section of which this prosecution Ayas instituted, no provision is found giving an appeal, writ of error, or other remedy, Avhere a party claims to be aggrieved, "We can not believe, however, that it Avas designed to make such judgment final, and must therefore look to other parts of the statute, to ascertain what the proper remedy is. Chapter 129, of the Code, defines the powers of justices’ courts in civil cases, and 209, their powers and duties in criminal cases Avithin their jurisdiction. It is provided by section 2349, that any person aggrieved by an erroneous decision in matter of law, or other illegality in the proceedings of a justice of the peace, may remove the same, or so much thereof as is necessary, into the District Court for correction, by writ of error. The defendant claims this is not a criminal proceeding; but if it is, then that the language of the above section is broad and general, and gives the writ of error to all persons, in all cases, Avhere they are aggrieved by an erroneous decision in matter of law, or other illegality in the justice’s proceedings.

"We have no doubt but that this is a criminal proceeding. The offences punishable, by the chapter under which this information Avas filed, are under the Code misdemeanors, and for the apprehension of persons offending against its proArisions and their punishment, we have the same summary Avrits and general directions, provided for and given for the trial of other misdemeanors and public offences within a justice’s jurisdiction. Being criminal, then, the question still remains, whether it comes within the class of cases referred to in section 2849. And we do not think it does. That section, we think, was designed to apply alone to civil cases; and especially so, as by section 3358, a full remedy is given the aggrieved party in these cases, by Avhich he has an opportunity to be reheard in the District Court, on any alleged errors in the proceedings or conviction complained of; and also on a neAV trial, Avithin the discretion of the court. This section, together with sections 3359 to 3365, inclusive, in our vieAV, furnish the only method, in all ordinary cases, under our law, for reviewing tbe judgment and proceedings of a justice of tbe peace in a criminal proceeding. By this chapter, these inferior courts have jurisdiction to hear and determine all public offences, where the punishment does not exceed two hundred dollars’ fine, or imprisonment in the county jail not more than six months, or where the punishment is by both such fine and imprisonment. After the offence charged has been so heard, tried, and determined, it is to be final, unless, on the rendition of the judgment, an affidavit is made, as provided for in section 3858, stating' the facts showing the alleged errors in the proceedings or conviction, and also that, as the affiant verily believes, injustice has been done. While the prisoner is to have a fair and full trial, yet it is also designed to effectuate prompt and certain punishment after such trial; and to only give an appeal, where the defendant can and does make this affidavit. If injustice is done, he can make the affidavit, and should have an appeal; if not, no necessity for a review exists. This was designed to prevent protracted litigation, the accumulation of costs in the appellate tribunal, and the danger of the escape of those who had violated the law, unless they made this affidavit, showing the injustice, and in what it consisted. This affidavit was not made in this case, nor the appeal asked or claimed in accordance with this section; and, therefore, the proceeding to this extent was irregular, and the writ of error properly dismissed.

The defendant further claims, however, that the’ court should have directed the .justice to allow an appeal. In this view, we cannot concur. ’ It appears that no affidavit was made before the justice, and none at any time before any person, until the 18th of January, before the clerk of the District Court, being the one which is the basis of this proceeding. Nor was any bond filed, or offered to be filed, until the 8th of that month. The defendant insists that these filings, and offers to file, were in time, being within twenty days after the judgments were rendered. This cannot be, for the law requires that the affidavit shall be made, and the defendant’s recognizance be entered into, “ on the rendition of the judgment," and tbe allowance of tbe appeal. 1 Under tbis provision, we would not say that tbe affidavit must be made at •tbe instant of tbe rendition of tbe judgment, but as soon as it can reasonably be reduced to written form, and before tbe ■ parties may be said to bave separated, with no view of returning to take further steps in tbe case. If required, tbe justice should give a fairly reasonable time, so as not to prejudice tbe defendant. Fifteen days after, as in tbis case (and that before tbe clerk), in no sense meets tbe requirements of tbe law. Parties in tbe meantime, having separated, and no means being left to recognize the 'material witnesses, unless they are again brought before tbe justice, would appear to be sufficient reasons, aside from tbe clear language of tbe law, for bolding that such application was too late. Tbe twenty days provided for appeals in ordinary actions before a justice, bave no application to tbis class of cases. , Nor do we think it one of tbe cases contemplated by section 2330 of tbe Code. That, gives a party tbe right to apply to tbe clerk of tbe court for tbe allowance of an appeal, in cases- where be applies within twenty days, and the justice is absent, dead, or unable to act. Independent of other considerations, it is sufficient to say, there is no showing that tbe justice was absent, dead, or unable to act; on tbe contrary, these are all negatived by tbe record.

But, again: it is said that tbis was a proceeding against a lot; that tbe occupant, or party in interest, bad no notice of tbe proceedings, and be could not, therefore, sooner make tbe affidavit; and that to deprive a person of tbis remedy, would virtually be to deny him any bearing. Tbis case is a fair illustration of tbe fallacy of this 'argument, when we come to give it a practical application. It appears from tbe justices’ returns, that Q-erlacb did know of tbe prosecution; that be asked to bave tbe trial postponed; but did not ask to defend tbe action. How, then, was be surprised ? or why can it be claimed, that be, as tbe claimant'of tbe property, or tbe person in possession of tbe premises, should bave time extended to him that is not provided for other persons ? For aught that appears, be could just as well bave made tbe •affidavit on. tbe rendition of tbe judgment, as five days thereafter. Tbe argument that those occupying and owning the property, and interested therein, should have an opportunity ■■to be heard, and that their property should not be condemned, without actual notice to them, if sound, addresses itself rather to the law-making power, than to the courts. Should a case arise, where a party had really been surprised by having his property condemned without notice, or a fair ■opportunity, in fact, to be heard in its defence, we should be inclined to afford him relief in some method. It is but seldom, however, if ever, that a person’s premises can be closed, and the property pass -under the control of an officer, that he will not know what it is for, and where he can be heard. This is the practical truth, whatever the theory. In this oase, we do not think the substantial rights of Gerlack have ■been so prejudiced, as to justify our disturbing the judgment below.

Judgment affirmed.