Beck v. Vaughn

Sherwin, J.

In January, 1905, the defendant E. A. Vaughn commenced an action, in the name of the State of Iowa, against C. C. Beck, the plaintiff herein, Orie Hunter, and others for the April term, 1905, of Linn county, alleging in said petition that the defendants were unlawfully keeping and selling intoxicating liquors in a certain building within said county. The petition asked that a temporary writ of injunction issue, and that on final hearing it be made perpetual. A notice was served on the defendants, which, so far as material in our inquiry, was as follows: “You are hereby notified that the plaintiff will on the 7th day of January, 1905, at 9 o’clock, at Marion, Iowa, make application to the honorable judge of the District Court of the Eighteenth District of Iowa on the^petition for an order for a tern *333 porary injunction and a permanent injunction upon final hearing, . . . and you can appear at said time and resist said application if you so desire. J. M. Tallman, Attorney for the plaintiff.” No other notice was served on the plaintiff, Beck, and on the 7th day of January, 1905, C. Gr. Watkins, who was then County Attorney of Linn county, appeared before the judge of the District Court and asked permission to appear and prosecute in behalf of the State. His application was granted, and the temporary hearing was continued until January 9th following. There was no appearance on the part of Beck on January 7th, nor on January 9th, and on the latter date the application for a temporary writ was heard and a temporary injunction issued by the District Court of Linn county. This temporary injunction was made perpetual in June, 1905. On the 13th of January, 1905, a copy of the decree granting a temporary injunction was served on the plaintiff, Beck, and on the 25th day of January, 1905, on a showing made by Vaughn, that Beck had violated the temporary injunction that had been issued and served on him, Beck was notified to appear and show cause why he should not be punished for contempt. He appeared in the contempt proceedings, and filed a motion to dismiss, and afterwards a demurrer to the petition, alleging, among other things, that the judge had no jurisdiction to punish for contempt, because no proper notice was served on him of the commencement of the suit. The motion to dismiss and the demurrer were overruled, and a trial was had in the contempt proceedings, and Beck was discharged. Thereafter this suit was brought to cancel the decree granting the permanent injunction, and to enjoin the defendants from proceeding thereunder, as we have heretofore said.

*334

1. Intoxicating liquors: injunction: notice: jurisdiction.

*333 From the foregoing statement of facts, it is at once apparent that the controlling question in this case is whether the judge granting the temporary writ of injunction had jurisdiction of the person of plaintiff, Beck. The appellee contends that there was no jurisdiction, and because thereof *334 that the decree was absolutely void; while the appellants take the position that the notice was, at most, * . . a deiecüve notice, that the Judge had iuns- . ' ° 0 diction, and that the appellee cannot assail the .decree granting the temporary writ or the decree granting the permanent injunction in an independent action such as this. We are of the opinion that the notice set out conferred no jurisdiction upon the judge to make an order for a temporary writ. Code, section 2405, provides for actions to abate liquor nuisances, and also, provides that- in such action the court, or a judge in vacation, shall upon the. presentation of a petition therefor, allow a temporary writ of injunction without bond, and the further provision is therein made that three days’ notice in writing shall be given the defendant of the hearing of the application for the temporary writ of injunction. It is very evident that, when a temporary writ of injunction is asked of the court, the same formality of notice is required by this statute that is required in any other form of action, and that nothing less will confer jurisdiction upon the court. So far, then, as this notice may be claimed to have advised the defendants named therein that application would be made to the District Court of Linn county for a temporary writ of injunction, it was wholly insufficient. Code, section 3514, provides that the original notice of the commencement of an action shall advise the defendant that a petition on or before the date named therein will be filed in the office of the clerk of the court wherein action is brought, naming the time at which it wdll be necessary for the defendant to appear and defend. The notice in question clearly does not comply in any respect with this statute, and, unless it can be said that it was a sufficient notice of the application to a judge in vacation, it clearly' was insufficient to confer jurisdiction for any purpose. The notice does not name the judge to whom the application for a temporary writ will be made, nor does it state the place where the judge may be found, any farther than naming the city generally where the *335 application will be made. This, under the rule of our cases, was clearly insufficient. Kitsmiller v. Kitchen, 24 Lowa, 163; Boals v. Shules, 29 Iowa, 507 ; Lyon v. Vanatta et al., 35 Iowa, 521 . The court being without jurisdiction, the decrees ordering the temporary writ and making the injunction perpetual were absolutely void and can be assailed and cancelled in any court. Arnold v. Hawley, 67 Iowa, 313 ; State Ins. Co. v. Waterhouse, 78 Iowa, 674 .

2. Same want of jurisdiction waiver: The appellants urge, however, that, although the decree ordering the temporary writ may have been without jurisdiction, the appearance of the plaintiff, Beck, in the contempt proceedings gave the court such jurisdiction of his person as to enable it to enter a valid decree upon the final hearing of the injunction proceeding. This cannot be so; the proceeding for contempt in violating either a temporary or permanent injunction restraining the illegal, sale of intoxicating liquors is a quasi criminal proceeding incidental' only to the main action, and an appearance therein, either on citation from the court or by virtue of a warrant of arrest can in no proper sense be held to be such a voluntary appearance in the main action as will confer jurisdiction. Fisher v. Cass County District Court, 75 Iowa, 232 ; Dist. Twp. of Lodo Millo v. Dist. Twp. of Cass, 54 Iowa, 117 .

3. Nuisance: action in name of State jurisdfction. There is another reason why the notice of the application for a temporary writ of injunction may well be held to have conferred no jurisdiction. Code, section 2406, provides that actions to enjoin nuisances may be brought in the name of the State by the county attorney, or that any citizen of the proper county may institute and maintain such a proceeding in his own name. The original notice in this case showed that the action was brought in the name of the State, but it also affirmatively showed that it was not brought- by the county attorney. These actions are regulated wholly by the statute, and in bringing them thei*e must *336 be a substantial compliance therewith. The people of a county are presumed to know who their officials are, and, no one but the county attorney being authorized by section 2406 to bring such an action in the name of the State, the defendant named therein was not bound to respond to such an action brought by an attorney other than the county attorney.

4. Injunctions: costs. n this case, the district court entered a judgment restraining the defendants as prayed, and taxed the cost of this action to the defendant E. A. Vaughn. This Vaughn comP^ains of. It is made to appear that Vaughn was the active party in the proceedings against Beck, and also that he was the party threatening to institute further proceedings against Beck based on the injunction decree. Vaughn’s codefendants are nominal only, being attorneys and the clerk of the court. We are therefore of the opinion that the costs of the case were properly taxed against Vaughn, and that he should pay the costs on appeal. It is not a case where a prosecution has failed, under section 2412 of the Code. If it were, a different rule would apply.

We find no cause for reversing the judgment of the district court, and it is affirmed.