Eikenberry & Co. v. Edwards , 67 Iowa 619 ( 1885 )

Seevers, J.

The plaintiffs recovered a judgment against the defendant, and caused an execution to be issued thereon, which was returned unsatisfied. Thereupon the plaintiffs filed a petition, in which it was stated that the’ defendant had in his possession property which he unjustly ■refused to apply in satisfaction of the execution; and an order for the appearance and examination of the debtor, as provided in Code, § 3135, was asked. Such an order was made, and the defendant appeared in response thereto. An examination was had, and the fact disclosed that the defendant had sold certain real estate, and received therefor promissory notes amounting to $18,760, which, the dhy after the notice was served requiring him to appear for examination, he had sent to his son-in-law in Colorado. The district court of Monroe county, in which the proceeding was pending, made an order requiring the defendant to turn over the notes to the court, and a receiver was appointed to receive and take charge of said notes, and it was further ordered that they should be regarded as assets subject to be sold on execution. It was further ordered that, upon the notes being so turned over, they should be subject to any further order that might be made in vacation in relation thereto. The defendant failed to deliver the notes as required by the order, and afterwards he was, in vacation, adjudged by the judge of said court to be guilty of a contempt, and ordered to be committed to the jail of Wapello county until he obeyed the order of the court.

1. contempt: auxiliary?) refusal to turn.over notes. I. Counsel for the defendant insist that the defendant was not guilty of a contempt. The proceedings in question were commenced under chapter 3, title 18, of the Code, entitled “Proceedings Auxiliary to Execution,” and section 3145 of that chapter provides that “if any person, party or witness disobey an order of the court or judge or referee, duly served, such person, party or witness may be punished as for contempt.” The defendant certainly refused to obey the order of a court or judge. He therefore is clearly guilty of a contempt, unless the facts adduced on the examination will. not warrant the order made, or the statute is unconstitutional. ¥e have examined the record with care, and are of the opinion that, although the notes were in the actual possession of another, yet they undoubtedly were so held for the use and benefit of the defendant, and were under his control. The order, therefore, was fully warranted.

2. cousTiTuproce^díngs" execii£:10 imprisoument for contempt, II. Is the statute unconstitutional? Counsel for the defendant cite and rely on Ex parte Grace, 12 Iowa, 208. It was held in that case that a similar statute was unconstitutional, because it conflicted with sections 9 and 10 of article 1 of the constitution, which pro- , „ . , , . , . vide that the right oi trial by jury shall remain inviolate, and that no person shall be deprived of life, liberty or property without due process of law. The only case cited by counsel in support of their position is Ex parte Grace. It will therefore be assumed that no adjudged case can be found which accords therewith, and yet it is true that similar statutes have been in force in several of the states for some years. Possibly the first state to enact such a statute was New York, and we are not advised that it has been declared unconstitutional, although questions under it have frequently been determined in the inferior courts of that state. In re Pester, 2 Code Rep., 98; Sandford v. Carr, 2 Abb. Pr., 462; Driggs v. Williams, 15 Id., 477; Kearney's Case, 13 Id., 459; Tompkins Co. Bank v. Trapp, 21 How. Pr., 17; Gould v. Torrance, 19 Id., 560. Statutes substantially the same as ours have been held to be constitutional in State v. Becht, 23 Minn., 411, and In re Burrows, 33 Kan., 675; S. C., 7 Pac. Rep., 149.

Under the chancery practice as it existed at the time the constitution was adopted, a person could be deprived of his liberty or property, and such deprivation has always been regarded as having been accomplished by “due process of law,” which has been defined to be “ law in its regular course of administration through courts of justice.” Happy v. Mosher, 48 N. Y., 313; Mason v. Messenger, 17 Iowa, 261; Den., ex dem., Murray v. Hoboken Land etc. Co., 18 How., 272. In so far as the pleadings are concerned, the distinction between actions at law and proceedings in chancei’y have been abolished by the Code, and .there is now but one form of action, which pertains to both law and chancery. Under the chancery practice as it existed when the constitution was adopted, and now under the Code, a creditor’s bill could be filed, the object of which was the discovery and subjection of property to the payment of a debt or judgment. Proceedings auxiliary to execution, as provided in the statute, were unknown to the common law; and the object to be accomplished thereby, and the manner of doing it, are or may be quite similar to a creditor’s bill, and may be well regarded as affording an additional remedy for the accomplishment of the same object. At least it may be said to be a statutory proceeding not in accord with the common law, but more nearly like a proceeding in chancery, and should, under the Code, be classed as a special proceeding, and tried as an ordinary action at law or proceeding in chancery, and the mode of trial will be determined by assigning the proceeding to whichever class it appropriately belongs. Sisters of Visitation v. Glass, 45 Iowa, 154. The statute contemplates a trial before a court, judge or referee; and such always has been the mode of trial in chancery cases. Witnesses may be examined, and the rights of the parties as fully protected as in any other proceeding in chancery. The defendant, therefore, was not deprived of his liberty or property without due process of law, and therefore the statute is not unconstitutional.

There is a material difference between the present statute and that in force when Ex parte Grace was determined. Under the present statute the order for the appearance of the supposed debtor can only be made by the district or circuit court, or a judge thereof, and the examination must be had before one of sirch courts or judges, or before a referee. Such courts have full and complete jurisdiction of actions at law and proceedings in chancery. They may impanel juries before whom- issues may be tried. The judges of said courts have all the powers possessed by judges of courts of general jurisdiction, and the statute under consideration cannot be said to be unconstitutional because the order for the appearance and examination may be made by a judge; nor can it be so said because the examination is had before the judge, unless the defendant asks to have it before the court; for, if such is his constitutional right, it is clear that such right may be waived. The statute in force when Ex parte Grace was determined provided that the order for and examination of the debtor could be made by the county court, or judge thereof, and the examination had before such court or judge. Such court was not a court of general jurisdiction. It had no power to try actions at law or proceedings in chancery. Its jurisdiction was limited and defined by statute. The court in Ex parte Grace laid some stress on the character and powers of the court before whom the proceeding was had, and the decision of this court in that case may be sustained, because the court and judge thereof did not have the power to impanel a jury, and was not vested with the power and jurisdiction to try issues in actions at law or proceedings in phancery.

the same III. The Code commissioners recommended that the . general assembly should amend the statute under consideration in the Revision, by striking out the words «county court, or judge thereof,” and providing that the order for the examination of the debtor should be issued by the district or circuit court, or a judge thereof, and that all the subsequent proceedings should be had before such court or judge. The recommendation was adopted, and the statute re-enacted, and it exists now in other respects in substantially the same form as it did when Ex parte Grace was determined. In addition to the foregoing, the Code commissioners recommended the enactment of certain provisions which it may-be supposed would, in their opinion, clearly make the statute both constitutional and effective. These last provisions the general assembly failed to adopt, and it is therefore ■insisted, in substance, that it was the legislative intent that no change should be made to obviate the construction adopted by this court. But we think this conclusion should not be entertained. The statute, as it had existed and had been construed, failed to accomplish the results intended by its enacts ment. It had become practically obsolete. In view of the change made, and the re-enactment of the statute, it may well be supposed that the legislative thought was that the construction which had obtained had been obviated. For the reasons stated, the orders and proceedings before the district court and judge thereof must be

Affirmed.