dissenting. I am unable to concur in the foregoing opinion, and will now present briefly the grounds of my dissent:
I. The decisive question in the case is this: Did the justice issuing the mittimus have jurisdiction in the case? A justice of the peace, it may be conceded, has jurisdiction to commit one guilty of a contempt by refusing to obey an order lawfully made in a case wherein he has jurisdiction of the subject matter in controversy, and of the person against whom an order or judgment is sought. But if he has no jurisdiction in the case, his order and judgment are void, and *568no jmocess he issues thereon can be enforced. This proposition cannot be doubted; it is quite unnecessary to cite authority in its support. The writ of habeas corpus cannot be used as a writ of error to review the decision of tribunals, when they act within the bounds of their jurisdiction. But if they exceed their jurisdiction, and render judgments or orders in excess thereof, and attempt to enforce them by the imprisonment of the person against whom they are directed, they will be declared void in habeas corpus proceedings, and the person held thereunder will be enlarged. In cases of this character, the jurisdiction of the court imprisoning a citizen charged with contempt depends upon the fact whether an act constituting the foundation of the charge is regarded in law as a contempt. If the act be not a contempt, the court cannot imprison — it has no jurisdiction.' The act alleged to be contemptuous is the subject matter of the proceeding in contempt cases. If the act is not a contempt in contemplation of law, it. is not within the jurisdiction of the court to punish the person charged with committing it.
Tribunals may decide all questions touching their jurisdiction, but their decisions supporting their jurisdiction are not conclusive, and judgments rendered without jurisdiction may be assailed either directly or collaterally. The decision ■ of a court that an act is a contempt is a decision as to its jurisdiction, and may be questioned in any collateral proceeding. It may, of course, be assailed upon habeas corpus, which is the very proceeding provided by the law whereby the legality of the imprisonment of a citizen may be determined.
In the case before us, it is insisted that the justice of the peace determined that the petition upon which Whitcomb was requested to make his affidavit is sufficient, and that he could be lawfully required to obey the order made by the justice. Upon these very points rests the question of the jurisdiction of the justice to commit for contempt. If the law does not authorize the justice to order plaintiff to make *569liis affidavit, then are the whole proceedings void, and the justice has no authority to commit him. The justice, in deciding upon the legality of the proceeding and the sufficency of the petition, passed upon the vital jurisdictional question in the case. His decison in support of his jurisdiction may be questioned by a direct or collatral attack, and especially may its validity be the subject of inquiry upon a ■writ of habeas corpus, which is especially designed to enlarge citizens unlawfully imprisoned.
Suppose a charge of felony should be made before a justice of the peace, and that officer should sentence the accused to the penitentiary, could it be claimed that, because the justice had decided that he had jurisdiction — had held that the information was sufficient and the accused rras guilty of an offense which he had authority to punish, therefore the legality of the commitment could not be inquired into upon a writ of habeas corpus? That case and this are governed by the same rule. In each, the jurisdiction depends upon the fact whether the act charged constitutes an offense punishable by the justice. The decision of the justice in neither case is conclusive, but is subject to review upon habeas corpus, for the reason that the jurisdiction of the justice is involved therein. It will be observed that in this case the decision of the justice is not brought in question upon the facts found by him, for there is no denial that the plaintiff did refuse to obey his order, but the contention in the case involves the question of law, whether plaintiff’s disobedience of the order is punishable as a contempt. The jurisdiction of the justice is in issue in the case, and if it be found that he acted without authority, the plaintiff was illegally imprisoned, and must be enlarged. Hurd on Habeas Corpus, pages 412, 333; Cooley’s Constitutional Limitation, page 348; Kilbourn v. Thompson, 103 U. S., 168; Zelle v. McHenry et al., 51 Iowa, 572; Robb v. McDonald, 29 Iowa, 330; Ex parte Holman, 28 Iowa, 88.
II. I am next required to determine the question invol*570ving the jurisdiction of the justice to require the plaintiff to make his affidavit or submit to an examination, as proposed in the petition upon which the justice of the peace acted. The Code contains the following provisions, which counsel for defendant insist conferred jurisdiction upon the justice to order plaintiff to make his affidavit and submit to the examination upon oath:
“Section 3692. When a person is desirous of obtaining the affidavit of another who is unwilling to make the same fully, he may apply to any officer competent to take depositions, as herein described, by petition, stating the object for which he desires the affidavit.
“Section 3693. If such officer is satisfied that the object is legal and proper, he shall issue his subpoena to bring the witness before him, and, if he fail then to make a full affidavit of the facts within his knowledge to the extent required of him by the officer, the latter may j)1’oceed to take his deposition by question and answer in. writing in the usual way, which deposition may be used instead of an ordinary affidavit.”
The affidavits contemplated in these sections are such as may be lawfully required of a person, and which may be used for lawful purposes. The person desiring the affidavit must have a right to demand it, and the person possessing the knowledge must be under obligation to impart such knowledge. The affidavit can only be taken for use in such cases, and in such manner-, as are contemplated and authorized by law. In numerous cases, the law requires affidavits to perpetuate proof of a fact, as the proof of publication of notice, and the like. So, affidavits are properly used as evidence upon motions made in cases pending in the courts, as upon a motion for a new trial, and for various other purposes. Bxxt a citizen cannot be required under these provisions to make sworn statments of facts to be xised for the benefit of another, when he is under no legal obligation to impart such knowledge which he possesses, or where it is proposed to use such *571statements in a manner not authorized by law. Tbe plaintiff* was under no obligation to give tbe defendants in tbe replevin case tbe information they sought to obtain for the purpose of enabling them to prepare their case for trial. Nor does the law authorize an affidavit to be used for the purpose indicated in the petition filed with the justice. Such a thing was never before heard of. If parties may call on each other for sworn statments of facts within their knowledge, the course of practice, in certain classes of cases at least, would be entirely changed. ¥e conclude that the justice had no authority to require the plaintiff to submit to the examination proposed, and that the order he made to that effect exceeded his jurisdiction. His decision, as we have pointed out, pertained to the question of his jurisdiction, and may be reviewed in this case.
III. Robb v. McDonald, 29 Iowa, 330, cited by defendant’s counsel, has no bearing upon the controlling question in this case, as the justice issuing the commitment in that case had jurisdiction therein, and the decision is based upon that ground. It is declared in the opinion that “the substance of the whole case, however, is in the thought that the justice had power to issue these subposnas and to take this party’s affidavit.” See page 333. Other questions in the case need not be considered in view of the conclusions we have announced. But it is proper to express in the strongest language, disapproval of the proceeding being instituted before, and entertained by the justice, who is the husband of one of the parties prosecuting it. No husband, as a judcial officer, ought to decide a case in which his wife is a party, as his interest in it is scarcely less than if he were a party himself. Such a thing is a scandal upon the administration of the law, and tends to impair the confidence and respect due to judicial officers. The decision of Mr. Justice Rothrock at chambers ought, in my opinion, to be reversed, and an order ought to be made releasing the plaintiff-from custody, and from all liability to answer on account of the proceedings before the justice.