dissenting. — The statute under which the proceedings in this case were had are the sections of the Code which are here set out:
“ Seo. 3135. When execution against the property of a judgment debtor, or one of several debtors in the same judgment, has been issued from the district, circuit or supreme court to the sheriff of the county where such debtor resides; or, if he do not reside in the state, to the sheriff of the county where the judgment was rendered; or a transcript of a justice’s judgment has been filed, and execution thereon is *625returned unsatisfied in whole or in part, — the owner of the judgment is entitled to an order for the appearance and examination of such debtor.
“Sec. 3137. Such order may be made by the district or circuit court of the county in which the judgment was rendered, or to which execution has been issued, or, in vacation, by a judge thereof; and the debtor may be required to appear and answer before either of such courts or judges, or before a referee appointed for that purpose by the court or judge who issued the order, to report either the evidence or the facts.”
“ Sec. 3110. If any property, rights or credits subject to execution are thus ascertained, an execution may be issued, and they may be levied upon accordingly. The court or judge may order any property of the judgment debtor not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be delivered up, or in any other mode applied towards the satis-> faction of the j udgment.
“ Sec. 3111. The court or judge may also, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the judgment debtor, and may also, by order, forbid a transfer or other disposition of the property of the j udgment debtor, not exenrpt by law, or may forbid any interference therewith.
“Sec. 3115. Should the judgment debtor fail to appear, after being personally served with notice to that effect, or should he fail to make full answers to all proper interrogatories thus propounded to him, he will be guilty of contempt, and may be arrested and imprisoned until he complies with the requirements of the law in this respect. And if any person, party or witness disobey an order of the court or j udge or referee, duly served, such person, party or witness may be punished as for contempt.”
The statute authorizes the district and circuit courts, or the judges thereof, to require a defendant in execution to submit to an examination under oath (Code, & 3138) as to the prop*626erty be owns and its disposition. Witnesses may be required to appear and testify in the proceedings. Code, § 3139. The court or judge may, upon such proceedings, order the defendant to surrender any property, found to belong to him, to the court, which shall be held by the receiver. If the order be disobeyed, the defendant may be committed as for a contempt, and be subjected to imprisonment until he obeys the order. The effect of the provisions is to authorize a summary proceeding wherein the defendant may be deprived of his liberty.
The constitution of the state (article 1, § 9) declares that “no person shall be deprived of life, liberty or property without due process of law.” The term “ due process of law” means the ordinary judicial proceedings recognized by law, and provided for determining the rights of property and for subjecting the citizen to deprivation of his liberty for violation of the law. Boyd v. Ellis, 11 Iowa, 97; Ex parte Grace, 12 Iowa, 208; Stewart v. Board Sup’rs, 30 Id., 9. No man may be deprived of his property or liberty under this constitutional provision except upon a judicial determination obtained in the manner prescribed by law for proceedings in the courts. There must be an adjudication had in such proceedings in order to deprive the citizen of his liberty or property. The proceedings authorized by the statute quoted above are summary in their nature. They do not accord with the ordinary course pursued in judicial proceedings. The pivotal questions in the case, — namely, whether defendant owned property, whether he fraudulently disposed of it, whether it was under his control so that he could surrender it, and whether he fraudulently put it out of his control, — were not determined in the manner prescribed for the decision of such questions when the rights of property depend thereon. They were decided in a summary proceeding, and not in a case wherein the usual course of the law was pursued. The difference between this summary proceeding and an ordinary action at law or in chancery need not be suggested to the legal mind. They are many, and essential to the just administration of the law.
*627It is true that a commitment for contempt may be made in a summary manner; but it can only be made when based upon a prior adjudication of the matter which is the foundation of the contempt. Eor a disobedience of a lawful order of a court, an offender may be committed as for a contempt. But the order disobeyed, to make the commitment lawful, must have been rendered in the exercise of lawful jurisdiction. An order not made in a cause pending, or, if in such cause, not in accord with the essential proceedings prescribed by law, will not support a commitment for contempt. So, for contera ptuous acts done in the presence of a court, the fact of such acts must be lawfully found and adjudicated by the court before the order of commitment can be made. Such adjudication must be made in the manner recognized by statute or the long-continued practice of the courts. But for contempts not.committed in the' presence of the court, the order disobeyed must have been made in proceedings which are recognized as being of the “ due process of law.”- I reach the conclusion that the statute above quoted, authorizing the proceedings in this case, is in conflict with the constitution. These views are in accord with and supported by Ex parte Grace, 12 Iowa, 208. See, also, State v. Start, 7 Id., 501.
It is my opinion that the order committing the defendant should be set aside and held for naught, and that a judgment to that effect should be entered here, and certified to the judge of the second judicial district.
Adams, J., concurs in this dissent.