Carey v. District Court ( 1939 )

I dissent from division one of the majority opinion. Chapter 535, 1935 Code, creates an independent statutory remedy of injunction in an action by equitable proceedings and sections 12535 to 12539, inclusive, found in said chapter, provide the proceedings that shall be followed for a violation of an injunction obtained as an independent remedy.

Section 12535 states that any judge of the supreme, district, or superior court shall, on satisfactory proof that an injunction has been violated, issue his precept to the sheriff directing him to attach the defendant and bring him forthwith before said judge or some other judge. (Italics supplied.)

Code section 12536 reads:

"12536. Contempt purged. When produced, he may file his affidavit denying or excusing the contempt, and the court may hear other evidence, oral or by affidavit, and if satisfied that the defendant is not guilty, or that the contempt is sufficiently excused, he shall be released, and all affidavits shall be filed with and preserved by the clerk."

Code section 12537 reads:

"12537. Bond required. If not so released, the judge may require him to give bond, with surety, for his appearance at the next term of the court and for his future obedience to the injunction, which shall be filed with the clerk."

Section 12538 provides that if defendant fails to give bond he may be committed to jail "until the next term of court".

Section 12539 reads:

"12539. Contempt punished. The court at the next term shall act upon the case, and, if a contempt is found to have been committed, punish it in the usual mode."

The only authority the judge before whom the defendant is brought through the execution of the precept has is to give the defendant an opportunity to purge himself of the contempt, and then determine whether the accused should be released. This hearing is not for the purpose of determining the guilt of the accused, but whether a prima facie case is made against him. If it clearly appears to the judge that the defendant is not guilty, it is his duty to release him. If the judge is not satisfied that the defendant is not guilty, it is his duty to require him to give bond for his appearance at the next term of court.

Section 12539 provides for a hearing on the merits of the charge at the next term of court. Under the express provisions of this section, the accused cannot be punished for contempt until "the court at the next term shall act upon the case," and a contempt found to have been committed. His guilt must be established at that hearing by clear and satisfactory evidence. The course of proceedings provided by said statutes gave the accused a reasonable time to make a defense. While the power to punish for contempt is inherent in courts of record, it is equally well established that a reasonable limitation may be imposed on the court's inherent power to punish for contempt though the court may not be deprived of such power. The requirement that the case be heard at and no punishment be inflicted until the next term of court is not an unreasonable limitation on the court's inherent power to punish.

The respondent was without jurisdiction to punish the petitioner at the same term of court that the precept was issued. The precept issued in this case was under the provisions of section 12535, chapter 535.

The word "court" used in section 12536 clearly means the judge before whom the defendant is brought under the provisions of section 12535.

The majority opinion states "chapter 536 provides for punishment for contempt by a `court'" and holds that if an accused is produced under a precept issued under the provisions of section 12535 before a court and not a judge he may be summarily tried and punished by the court under the provisions of chapter 536.

I cannot agree with this construction of said chapters. Chapter 535 provides that in a proceeding for violation of an injunction a precept shall issue directing that the accused be brought before a judge for the purpose of giving him an opportunity to purge himself. Whether or not the accused is guilty of violating the injunction cannot be determined by the court until the next term of court. Furthermore, chapter 536, which enumerates certain acts and omissions constituting contempts, does not, as clearly shown by sections 12540 and 12541, provide for a trial and punishment for contempt solely by a court.

Section 12540 reads:

"12540. `Court' defined. Any officer authorized to punish for contempt is a court within the meaning of this chapter."

Section 12541 reads in part:

"12541. Acts constituting contempt. The following acts or omissions are contempts, and are punishable as such by any of the courts of this state, or by any judicial officer, including justices of the peace, acting in the discharge of an official duty, as hereinafter provided:" etc.

Code Section 2027 provides that in case of the violation of an injunction granted under the provisions of title VI, the court, or in vacation, a judge, may summarily try and punish the offender. Section 1604 contains a similar provision for the violation of an injunction granted under the provisions of chapter 79, which relates to houses used for prostitution, gambling, or pool selling. Chapter 536, which is a general chapter on contempts, permits a punishment for contempt at the same term of court. However, the legislature clearly provided that if a person was accused of violating an injunction obtained as an independent remedy, and failed to purge himself of contempt before the judge, he must not be tried or punished until the next term of court.

The case of Blunk v. Walker, 206 Iowa 1389, 1392, 222 N.W. 358,359, does not, as stated in the majority opinion, sustain the contentions of respondent. The original proceeding in the Blunk case was not an independent remedy of injunction but was a divorce action. A restraining order was issued against the defendant, Donald J. Blunk. He was found guilty of violating the order and summarily tried and punished at the same term of court under the provisions of chapter 536.

The court states:

"Was the respondent court acting within its jurisdiction, upon the conclusion of all the evidence, in imposing then and there the judgment in question, or should the defendant have been held `for his appearance at the next term of court,' with opportunity to him `to get bond with surety for his appearance?'"

The court then states on page 1393, 222 N.W. at page 359:

"In passing, it may be observed that chapter 535, Code of 1924, deals with injunctions that may be obtained as an independent remedy in an action by equitable proceedings, which relief would have been granted in equity previous to the adoption of the Code, and is referable to all cases of breach of contract or other injury where the party injured is entitled to maintain and has brought an action by ordinary proceedings. * * *. When the party is produced, he may file his affidavit denying or excusing the contempt. In other words, the defendant is given an opportunity to purge himself of the contempt. If he is not released, the judge may require him to give bond with surety for his appearance at the next term of court, and for his future obedience to the injunction; and if he fails to give such bond, he may be committed to the jail of the county where the proceedings are pending, until the next term of court, unless he gives the bond in the meantime. It is further provided that the court at the next term shall act upon the case, and if a contempt is found to have been committed, punish it in the usual mode. Sections 12535 to 12539.

"There is no occasion to attempt to harmonize the provisions of chapters 535 and 536, Code of 1924, for the reason that the subject-matter of the two chapters is clearly differentiated. They are to be construed and both given effect according to legislative intent in their enactment. A different procedure is contemplated by said chapters, according to the nature of the case and the subject-matter of the action. We therefore hold that the respondent court acted within its proper jurisdiction in the instant case."

The court, in the Blunk case, recognized that "a different procedure is contemplated by said chapters, according to the nature of the case and the subject-matter of the action," and if the petitioner had been accused of violating an injunction obtained as an independent remedy in an action by equitable proceedings, in my opinion, the court would have sustained the writ.

I would sustain the writ.

BLISS, J., joins in this dissent.