Haaren v. Mould

Weaver, J. The return of the respondent, to which alone this court must look for the facts in the case, shows that on April 4, 1908, one H. H. Sawyer filed in the office of the clerk of the Woodbury district court an information charging Frank Haaren, complainant, with con [298] tempt of the authority of said court in the violation of an injunction theretofore issued against him at the suit of said Sawyer. A copy of the alleged decree was attached to the information, showing that at the suit of said Sawyer the said district court, Hon. John F. Oliver, presiding, did on June 8, 1907, permanently enjoin and restrain the said Haaren from the traffic in intoxicating liquors contrary to law, at any and all places within the Fourth judicial district of Iowa. Acting upon this information, the Hon. William Hutchinson, one of the judges of said district court, issued a precept for the production of said accused person before him or some other judge of the same district for hearing and trial on said charge. Said precept was made returnable on April 13, 1908, on which date the said Haaren appeared before the said district court, the Hon. David Mould, respondent herein, being the judge presiding, and by agreement the hearing on the contempt proceedings were continued until April 18, 1908. At the time so fixed a hearing was had before said court upon the matters charged in the information, the said Haaren being present and represented by counsel. Before any evidence had been introduced, the said accused objected to the jurisdiction of the court to entertain said proceedings because the order or precept by which he had been called into court to answer was issued by one of the judges at a time when the court was in actual session. Without ruling on the objection the court proceeded to the hearing of the testimony offered on the part of the informant. At the close of said testimony, the accused offering no testimony -in his own behalf, a submission of the matter was taken. Thereafter, and before entering any decision, the court on its own motion, and over the objection of the accused, set aside the submission and made an entry expressly overruling the objection to its jurisdiction, and offered the accused opportunity to introduce evidence in his defense if he desired to do so. Declining [299] the opportunity thus offered, the accused moved to arrest judgment against him on the following grounds: (1) The proceedings were instituted before a judge, and not before the court, although the court was then in session. (2) No authenticated copy of the alleged injunction w;as furnished to the judge or attached to the information. (3) The proceeding was not entered on the calendar of the court, and no order issued by the court, the same being issued by the judge as in vacation. (4) There is no evidence of any violation of an injunction, in that no record entry of the decree, or any authenticated copy thereof, has been introduced in evidence. (5) There is no competent evidence showing the alleged acts by the accused. The court denied this motion, and thereupon entered judgment, finding the accused guilty of contempt as charged, and ordering that he pay a fine of $200 and costs. The respondent makes further return that the decree of injunction which the accused was found to have violated was entered by said court when presided over by Hon. John F. Oliver, judge, and that the record entry of said decree was not offered or presented in evidence on the hearing of the charge of contempt, but the court on said hearing, acting on its own motion, took judicial notice of said decree. The grounds upon which the writ of certiorari is sought to be sustained, and the judgment entered against the complainant herein annulled, are substantially those stated in the motion for arrest. 1. Intoxicating liquors: contempt: jurisdiction. I. The objection to the jurisdiction of the court is> not well taken. The precept or warrant by which the accused person is brought into court is not essential to jurisdiction of the court to hear and try the charge of contempt. The foundation of proceedings — that which authorizes the court to act in the premises — is the information. In the language' of the Code (section 2407) the proceedings are “commenced by filing with the clerk of the court an in [300] formation under oath setting out the alleged facts constituting such violation.” The office of the precept, warrant, or citation is to bring the accused into court, and give him an opportunity to be heard in his defense. He may waive the issúance or service of such -process and appear to the proceedings, and when once in court, he cannot be heard to question its jurisdiction because of irregularity in the issuance of the precept, if the information be sufficient in form and substance and duly filed. State v. Thompson, 130 Iowa, 227. Nor is the failure to attach to the information a duly authenticated copy of the decree alleged to have been violated a valid jurisdictional objection. It is true that in the general chapter upon the subject of injunction (Code, section 4372) it is provided that a judge in vacation may issue a precept for the attachment of a person alleged to have violated a decree, on being furnished an authenticated copy of the decree and satisfactory proof of the alleged violation of its provisions, and it may be that the court or a judge thereof could, in the instant case, have pursued the course here pointed out, but the Legislature has seen fit to make special provision as to the procedure for the trial and punishment of persons violating liquor injunctions. See Code, section 2407, above cited. These provisions do not include any requirement for attaching an authenticated copy of the decree to an information charging its violation, and we think its omission is not fatal to a court’s jurisdiction to hear and pass upon the merits of the charge. McGlasson v. Scott, 112 Iowa, 289. 2. Same:objection to jurisdiction ruling of court. II. It is argued that the record discloses fatal error in the act of the trial court in declining to rule upon the objection made by the accused to its jurisdiction and to the introduction of evi- . ' . dence. It is the right of the accused to have his objections ruled upon, and if that right is not recognized, with the result that improper evidence [301] is introduced to his prejudice, it would doubtless call for a reversal. McGlasson v. Scott, supra. But the record here discloses no error of this kind. The evidence offered was pertinent and competent. Moreover, the court, in reopening the case and entering its ruling upon the objections and giving the accused an opportunity to offer evidence in defense, sufficiently cured the irregularity, if any, in its prior action. 3. Same: judicial notice. III. The one serious objection made by the complainant herein has reference to the omission by the informant to offer in evidence the decree alleged to have been violated, and to the act of the court in taking judicial notice of such decree. It is fairly well settled that in the trial of a case the court is not authorized to take judicial notice of its records, judgments, and orders in another and different proceedings. Baker v. Mygatt, 14 Iowa, 431; Enix v. Miller, 54 Iowa, 551; Loomis v. Griffen, 78 Iowa, 484. But the court will take judicial notice of prior orders and proceedings in the samé case without the necessity of any formal offer or physical production of the record in evidence. Poole v. Seney, 70 Iowa, 275; Brucker v. State, 19 Wis. 539; Farrar v. Bates, 55 Tex. 193; State v. Olds, 106 Iowa, 114; State v. Stevens, 56 Kan. 720, (44 Pac. 992); Dines v. People, 39 Ill. App. 565; Bailey v. Kerr, 180 Ill. 412, (54 N. E. 165); Hollenbach v. Schnabel, 101 Cal. 312, (35 Pac. 872, 40 Am. St. Rep. 57); State v. Bowen, 16 Kan. 475; 7 Ency. Evidence, 999. Tbis bas been interpreted to include the authority of a court in actions of a collateral character, and especially where the object or purpose of the proceedings is to enforce a judgment or decree entered in the principal case. Conlee Lumber Co. v. Meyer, 74 Iowa, 403; Flood v. Libby, 38 Wash. 366, (80 Pac. 533, 107 Am. St. Rep. 851); Kelly v. Gibbs, 84 Tex. 143, (19 S. W. 380, 563); Olson v. Brady, 76 Minn. 8, (78 N. W. 864). We bave held that in garnish [302] ment proceedings the court will take judicial notice of the judgment in the principal case. Kenosha Stove Co. v. Shedd, 82 Iowa, 544. It has also been held that contempt proceedings for the violation of an injunction against the unlawful traffic in intoxicants may be instituted and prosecuted under the title of the action in which the injunction issues. Mandersheid v. District Court, 69 Iowa, 240. While the charge against the complainant partakes somewhat of a criminal character, its purpose is simply to compel obedience to the order or decree entered in the main case, and it would be a strange limitation upon the power of the court if, when a party is charged with contemptuous disregard of its decree, it can act only upon the production of proof by the informant as to the existence and terms of such decree. In our judgment proceedings to punish contempt of an order or decree of the court are so far identified with the action in which the order or decree was entered that the court may take judicial notice thereof without proof or profert of the "record. Such is the substance of our holding in Jordan v. Circuit Court, 69 Iowa, 181, and Ferguson v. Wheeler, 126 Iowa, 111. See, also, State v. Jones, 20 Wash. 576, (56 Pac. 369); State v. Porter, 76 Kan. 411, (91 Pac. 1073, 13 L. R. A. (N. S.) 462); State v. Thomas, 74 Kan. 360, (86 Pac. 499). The case of McGlasson v. Scott, supra, is not an authority to the contrary. In that case the rule as to judicial notice was neither mentioned nor discussed, but the holding there was simply to the effect that the existence of a decree could not be established by the production of an uncertified copy. ’ Nor is the rule any less applicable where the decree in question was entered at a term of court presided over by a judge other than the one presiding . in the contempt proceedings. The court remains the same without regard to the identity of the judge. [303] 4. Same. [302] Nor does the fact that the presiding judge may have [303] no personal knowledge or remembrance of the decree which has been violated in any manner prevent the application of the rule of judicial notice, for in such case the court will take cognizance of the true state of the record by referring to the proper books, documents, and other sources of information. Clare v. State, 5 Iowa, 509; Gardner v. Collector, 73 U. S. 499, (18 L. Ed. 890); U. S. v. Cotton, Fed. Cas. No. 15,958; Hoyt v. Russell, 117 U. S. 401, (6 Sup. Ct. 881, 29 L. Ed. 914). As has been said-by the Minnesota court: “Judicial notice does not depend on the actual knowledge of the judges. When the fact is alleged, they must investigate, and may refresh their recollection by resorting to any means which they may deem safe and proper.” State v. Stearns, 72 Minn. 200, (75 N. W. 210). This rule has the substantially uniform support of all the authorities upon the subject, and we can .conceive of no more appropriate case for its application than the one presented by the record before us. The trial court did not exceed its jurisdiction, nor otherwise act illegally in holding the complainant guilty of contempt, and the writ of certiorari is therefore dismissed.