Iowa capitol reporter. [volume] (Iowa City, Iowa) 1841-1855, 1854-08-23
IOWA CITY, WEDNESDAY. AUGUST %. 1854

The facts alleged in the answer and which.
so far as well pleaded, ara admitted 70 be true
by the demurrer, constitute1 good defence to
the petition. As Marshal X Iowa City, the
defendant waa conservato, of the peace Laps
Of 1853 80 Code Sec. 5e23.
A peace officer may arrest d person for an
offence committed or attempted Ia his presence.
Code 2s42. In this case. an offende was not
only attempted but actually committed, accor-
ding to the averments in the answer. which ua.
der the demurrer must be regarded as true. It
is an offence-a violation OF the public peace, to
make or excite any disturbance in any tav !.
ern, store DC, or at any public meeting. or in
any other place. where the citizens arr peace
fully and lawfully assembled Code 2742.--
An offence is attempted when persnn ,a.der.
takes to assault aud resist an oficer:s When
an atFray Is threatened. The answer clearly
shows that the aeReer was justified in making
the arrest, md afV -)mmon law he had Sne DOW.
Il 10 desain the offender, till he sould be taken
before magistrate for examination. 9 ia
cob's Law Die 40 I Block Cosm, 372; y
d. 295; Giitys or. Law 10, &c; Arnold
The svsrssd = iasozlasliss & spesllss3 3Isees' y
I detention icr reason a6Ie stihe. r 70 hours
| under the circumstance could not be deemcd
| unnecessary or unreasonable. Il
The power to detain in custody for reason-
able time when an offence has been committed
or attempted, is indispensable to the duties of
peace officer The power is Inherent The
exercise ol ii often becomes unavoidable. The
answer in the present case shows anpe iustf-
cation.
III. Did the court err IN refusing to allow
defendants attorney to address the Jury p
When judgement is rendered by defsult. 'thc
defendant may appear at the time OF the as
sessment and cross-cxamine the plaintiffs
witnesses but for no other purpose Code S3l.
The court below evidently regarded this as a
judgment by default But as the defendant
did not fail to file his answer nor withdraw
his pleading" Code 1924 it cannot be re-
garded as default in contemplation Of the
code
The defendant did not withdraw his answer.
hut trusting to its legal sutfcency, submitted
to Judgment on the demurrer. The Judgment
was rendered az the result of defective an
swer and not in default of an answer. = We
think therefore ,ha' the defendants counsel
ha6 right to address the jury on the question
Of damages and had right to claim iustruc.
tons from the court as to the true measure of
damages.
1t is not the policy of our laws to exclude a
party from hearing and a statute having
that effect, should not be favored by our courts
1t should be restrained TO ils closest limits and
should only be enforced when case com, 9
fully within its requirements.
When a party has a righ, IN jury trial on
any question, can tha,.rght he CONSTITUTIONAL :
ly trammeled by the restrictions of this sec.
tiong Can party be thus debarred from a
hearing before jury, or from having legal in.
structions given to guide them in their find
ing Can these restrictions be enforced and
slili the constitutional fright of trial by jury
| remain inviolatc"1 These questions might le,
! lpitti tina taI, arisa in ha GA I'm ma fh.y Vur
! not adjudicated below, nor referred TO by ar
gument here, they will not now be answered
Judgment rerersea.
| GREENE Justice