Highberger v. Thompson

*581 De Graff, J. -This is a certiorari to a judgment of the district court of Polk County, Iowa, imposing a statutory penalty upon the petitioner for an alleged contempt of court in that the petitioner (as defendant below) was accused on information with the violation of a temporary restraining order enjoining him from keeping and maintaining a liquor nuisance. No question arises on the validity of the temporary order upon which the instant contempt is predicated. The vital inquiry is whether the temporary writ was in force and effect at the time this contempt proceeding was instituted. To the petition for permanent injunction filed in the original cause February 26, 1915, there were no defensive pleadings. The temporary writ issued March 2, 1915. No trial on the merits was thereafter had, nor were any steps ever taken to bring the original cause to a final determination; but on the contrary the cause was dropped from the court calendar in 1916, and no motion was ever filed thereafter on the part of either plaintiff or defendant to have said cause reinstated. Furthermore, the plaintiff in the original cause died in 1923, and no substitution was ever made. In brief, no further echo of the original proceedings subsequently to the issuance of the temporary writ of injunction was heard in any court until .the 9th day of September, 1924, when an information and “petition to cite for contempt of court” was filed, bearing the caption “State of Iowa, ex rel. Ternon Seeburger, Plaintiff, v. A. E. Highberger, Defendant,”—with this exception: that, on the 31st day of March, 1915, an information for contempt was initiated and successfully prosecuted in the original cause, charging the defendant with the violation of the terms of the temporary injunction, as in the instant case. The petitioner contends that, by reason of the foregoing facts pleaded in his answer in the contempt proceedings, the original action in which the temporary writ had its origin was abandoned long sincey and that the temporary injunction lapsed and was inoperative akthe time the defendant is alleged to have violated its terms and provisions. We are, therefore, confronted with these questions: Does the dropping of a cause from the court calendar under the *582 facts of the instant case operate as a dismissal of the cause? Does the-death of the plaintiff without a substitution of parties ■ipso facto dissolve a temporary injunction? I. • The original writ was only a pendente Lite injunction. It was temporary, and so intended. It was not res adjudicata as to .the matters in issue. It was an order made in the exercise of judicial discretion and in conformity to statutory provision. To give finality to such a temporary rule Avould be contrary to the principles governing estoppel by judgment. See Bohler v. Callaway, 45 Sup. Ct. Rep. 431. It may be accepted, however, that a temporary injunction is operative until dissolved by the court or until the cause of action in which it is an. incident is dismissed or terminated in some legal manner. Horrabin v. City of Iowa City, 160 Iowa 650. The withdrawal, settlement, or abandonment of a primary claim giving rise to the remedy or right leaves nothing for a court to determine in relation thereto. Chicago, R. I. & P. R. Co. v. Dey, 76 Iowa 278. Without a temporary injunction the instant citation for contempt has no legal basis. This is the logic of the case. . We therefore inquire whether the dropping of the cause from the calendar under the circumstances worked a dismissal of the action. It is conclusively shown that the cause involving the petition for permanent injunction against the petitioner (defendant below) was not found on the equity calendar of the Polk County district court for the year 1916 or thereafter. The reason for its nonappearance is not disclosed by the record. No order or entry was ever made by the trial judge in this particular. Clearly, its nonappearance on the printed calendar of the court . without further showing cannot be construed as a dismissal or an abandonment of the action. The dropping of the cause from the calendar, even under order of court, does not necessarily mean its dismissal. There must be facts which disclose the purpose, to warrant the conclusion that a dismissal was intended. Barber v. Scott, 99 Iowa 667. A court calendar is kept by the clerk for the convenience of.the bench and bar. Section 11441, Code of 1924. It is obvious that a case may be pending without being noted on the calendar. Such a case may not be subject to trial or trial notice under the rule of court, but it is not necessarily dead. Further, *583 a court will not assume a dismissal of a cause by its mere absence from tbe printed calendar, in tbe absence of an entry or proof aliunde on wbieb a finding of dismissal may be predicated. In the instant case there was no entry of dismissal, nor are there any facts upon which a finding could be made that a dismissal was intended. It is the legislative intent under the statutes of Iowa thht liquor injunction cases shall be brought to a final determination with reasonable dispatch. It is made the duty of the trial court to ascertain why liquor cases are not prosecuted with diligence, and the plaintiff and his attorneys may be ordered into court to explain the cause of delay. Section 2025, Code of 1924. Conceding that the record discloses a remarkable exhibition of laches on the part of plaintiff in the prosecution of this case, and conceding, arguendo, that the court might properly have sustained a motion of the defendant to dissolve the temporary writ (Perry v. Wittich, 37 Fla. 237; Classen v. Danforth, 56 Ill. App. 552), this court does not find a satisfactory answer to the problem in such concessions. The fact stands that the temporary injunction had not been dissolved, nor had the main action been dismissed. We cannot presume an abandonment without facts to justify the inference; and the statutory provisions negative the presumption. The instant action instituted “by a citizen” cannot be dismissed upon the motion of either plaintiff or defendant until the county attorney shall have been notified in writing of the filing of such a motion, and until such county attorney shall have made a personal investigation of all matters pertaining thereto and filed his report in writing, with recommendations ‘ ‘ in reference to the disposition of the same. ’ ’ Section 2024, Code of 1924. This does not imply that the court may not dismiss on its own motion; but this was not done. Plaintiff was satisfied to rest on his oars. For what reason, we know not. The defendant did not see fit to interfere with the condition created by the plaintiff. The fact that further progress was a matter to be determined by the court is not controlling, and with the view that the court might have taken of the situation, Jiad defendant become a movent, we are not concerned. We are facing a condition, not a theory; and under the *584 record facts, we will not presume either a dismissal or an abandonment of the action. II. Did the death of the plaintiff require a- substitution of a party plaintiff in order to predicate valid contempt proceedings for the violation of the temporary injunction entered in the original action ? Clearly, the state, by its accredited representative, or any citizen qualified to institute the original action, could have been substituted, by leave of court, for the deceased plaintiff. “The authority to institute and maintain such an action is broad enough to include the power to maintain one brought by another who is prevented by death or other cause from carrying it on.” Geyer v. Douglass, 85 Iowa 93. Nor can it be questioned that the contempt proceeding Avas properly instituted in the name of the comity attorney, although he did not appear and file the petition in the original action. Fisher v. Cass County Dist. Court, 75 Iowa 232. The original action involved a matter in Avhich the public was interested, and it could have been brought hi the name of the state. An injunction is not dissolved, neither does it become inoperative, as a general rule, by the abatement of the suit in which it issues. We are not dealing with the right to have a permanent injunction issue, under the facts of the instant case. 'In that event the abatement merely suspends the progress of the suit until neAA' parties are-brought before the court. “If there is no longer any person before the court by or against whom the suit can proceed, it must be revived before any further proceedings can be had by Avhich the rights of the parties to the suit are finally determined. ’ ’ 1 Corpus Juris 220, Section 441. The right exists, under the statute, to have substitution made (Section 1Ó959, Code of 1924), and it might have been done by proper proceedings in the instant case. The death of the plaintiff, however, did not dissolve the injunction. It remained a vital and valid order of court. The cause of action being conceded to have abated, subject to revival on motion for substitution by a proper party, the order of court remained effective, and the affidavit upon which the contempt A?as based *585 was filed by á proper party. The original action, although instituted in the naine of a citizen, as provided by statute, was in the nature of an action upon the relation of the state, and had the same effect as if entitled upon the relation of the state or its representative, the county attorney. The plaintiff had no personal or pecuniary interest in the action. It was a matter in which the public alone was concerned. Geyer v. Douglass, supra. The contempt proceeding was incidental to the original action, and need not be entitled as “of the original cause.” This being the true situation, the trial court properly ruled the matter in issue. Wherefore, the writ heretofore issued is annulled, and the judgment entered is — Affirmed. Faville, C. J., and Stevens and Vermilion, JJ., concur.