Joyner v. Utterback , 196 Iowa 1040 ( 1923 )

Stevens, J.

(concurring). I concur in the conclusion reached by the court in this ease, but I arrive at such conclusion ■by a different route than the majority. An information alleging violation of a liquor injunction is, under Section 2407 of the Code, triable upon affidavits. The proceeding is summary in character, and may be before a judge in vacation, as well as before the court in term time. If either party demand it, the witnesses must be produced for oral examination. This, however, changes the method of trial only to permit the testimony to be offered orally, instead of in the form of written affidavits. The character of the testimony may be the same. When offered orally, it is in the nature of an affidavit, and must be so received by the court. If an exhibit is attached to an affidavit and referred to as such, it is admissible as a part thereof. If, as in the case at bar, the identification of the exhibit is insufficient to give it probative value, it must be disregarded by the court, as would be any other -irrelevant or immaterial matter set up in the form of an affidavit or received on oral examination. A motion would not lie to strike any part of an affidavit filed in a proceeding of this character because it was immaterial or irrelevant or incompetent. The court would simply disregard it. It is my opinion that, under the statute, the court is not required to rule upon evidence offered orally or in the form of affidavits, but will be conclusively presumed to have based its conclusion upon such testimony as has probative value and tends to satisfy the court that a violation has occurred. I dissent from the reasoning of the majority, but concur in the result, for the reasons stated.