Robb v. McDonald

Wright, J. The basis of plaintiff’s application was, that Tucker’s petition for a new trial, under section 3116 of the Revision, was to be tried “ as other cases, by ordinary proceedings.” Hence, upon testimony in open court or depositions, not upon ex parte affidavits, and that the applicant therefor had no right to demand, nor the justice power to require, a witness to make the proposed affidavit. Though we should concede'the first part of this proposition, we should still not be prepared to concur in the order discharging the petitioner. As to the nature of these applications for a new trial, however, see Alger v. Merritt, [332] 16 Iowa, 123; Richards v. Nuckolls, 19 id. 556; Sturgeon v. Ferron, 14 id. 160. It seems to us that the first inquiry is, whether the circuit court had any power, under this writ, to inquire into the regularity or legality of the proceedings of the magistrate adjudging the contempt and making the order of commitment. It will be remembered that the witness (this petitioner) three times defiantly and persistently refused to obey the process with which he was served ; and that, upon being brought before the justice, he still obstinately refused to take the required oath or make the desired affidavit. If the justice had the power to issue these subpoenas, then there can remain no question but that the witness was in contempt and liable to punishment. Eev. § 2688, cl. 4. The justice was a judicial officer, acting in the discharge of an official duty, and, as such, a contempt of his authority or orders, within the scope of his powers, was punishable. Could this person or witness then determine for himself, in disobedience of the process with which he was served, that, as his affidavit would not be admissible, he would stand out against all efforts to take the same 1 It seems to us most clearly not. The law invests a party subpoenaed with no such dangerous powers. The rights of litigants and powers of courts are not subject to be defeated and set at naught by the caprice and self-will, the sole judgment of a defiant witness, or an equally defiant, and doubtless more interested, party. The law gives to a party the right to apply to a justice, or any officer competent to take depositions, to have affidavits taken. This he does by petition, stating the object for which he desires the same. Eev. 4038. By the sections succeeding it is provided that the officer may issue subpoenas ; take the testimony in the form of affidavits or depositions ; may, in his discretion, require notice to the opposite party or person interested in the testimony, and [333] that the court to which an ex parte affidavit thus taken is produced may require the witness to be brought before some competent officer for cross-examination. And what right had the witness in this case to determine for himself that the justice was not proceeding strictly in accord with this statute ? What right had he to determine whether his affidavit would or would not be received on the motion for the new trirl ? How did he know but that it was to be taken upon notice or by agreement ? How could he tell, or what right had he to suppose, that there would be an objection to his affidavit when taken ? How could he know but that the party asking the affidavit might not also seek an injunction, under section 3505 of the Revision, and need his affidavit to make a probable cause tor granting the same ? The substance of the whole case,' however, is in the thought that the justice had power to issue these subpoenas and to take this party’s affidavit, and the witness had no right by this process to have investigated the legality of that proceeding. A single judge cannot in this method review the order of commitment, nor determine in advance for him, as this witness undertook to do, that the affidavit would not be admissible in a state of case by him supposed. The witness might as well' have undertaken to decline answering a question because it was leading, or the testimony incompetent, or the like, and thus set at defiance the proceedings and orders of the magistrate. ■ Upon this subject see Platt v. Harrison, 6 Iowa, 79; Ex parte Grace, 12 id. 208; State v. Duffy, 15 id. 425; Printz v. Cheeney, 11 id. 469. Then we must not forget that the justice was undertaking to punish this witness for a contempt of his authority and orders. He certainly had a right to issue a subpoena, commanding plaintiff to appear. This no [334] one will deny. It was the duty of plaintiff to obey that mandate. In refusing this obedience he defied the law, and was in contempt of its authority. It would certainly be a most dangerous doctrine, and much more so than seems to be esteemed possible by petitioner, if, on habeas corpus, the judgment or order of the justice could be reviewed. The rule is well settled, that in such cases, that is, when the party is being punished for a contempt, unless the proceedings leading thereto are so grossly defective as to render them void, the judgment of com-, mitment cannot, in the absence of statute, be reviewed in any other tribunal, and certainly cannot otherwise, or in other cases, be attacked under this writ. We state the rule, but have no time, nor does the occasion demand, that we do more. It well sustained. Ex parte Kearney, 7 Wheat. 38; Heard on Hab. Corp. 412, and the numerous cases there cited. “ Infinite confusion and disorder,” says Blackstone, “ would follow, if courts could, by habeas corpus, examine and determine the contempts of others.” Lockwood v. The State, 1 Carter’s Ind. 161; Ex parte McKee, 18 Mo. 599. Reversed.