117 F. 448 (8th Cir. 1902), 29, In re Nevitt

Docket Nº29.
Citation117 F. 448
Party NameIn re NEVITT et al.
Case DateAugust 28, 1902
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 448

117 F. 448 (8th Cir. 1902)

In re NEVITT et al.

No. 29.

United States Court of Appeals, Eighth Circuit.

August 28, 1902

Page 449

Syllabus by the Court.

The writ of habeas corpus challenges only the jurisdiction or power of the court to commit the prisoner, and it may not be invoked to review or avoid the erroneous rulings or judgment of a court of competent jurusdiction.

It is the policy of the law to promote and sustain the compromise of disputed claims, and the fact that a judge advises the compromise of litigation pending before him does not disqualify him from deciding the questions it presents.

The power to punish for contempt and disobedience of their judgments, orders, writs, and processes is an attribute of the federal courts, as inherent and indispensable as judges. It was vested in them, the moment they came into existence, by the grant to them of all the judicial powers of the nation by section 1, art. 3, of the constitution.

Proceedings for contempts are of two classes,-- criminal or punitive, and civil, remedial, or coercive. The former are conducted to preserve the power and vindicate the dignity of the courts to punish for disobedience of their orders. The latter are instituted to protect, preserve, and enforce the rights of private parties, and to compel obedience of the orders, judgments, and decrees of the courts made to enforce the rights and remedies to which the courts have decided that such parties are lawfully entitled.

The commitment of the judges of a county court to prison until they comply with a mandamus which directs them to levy a tax to pay a judgment against their county is not criminal, but is civil, remedial, and coercive in its nature, because it is of the character of an execution to collect the judgment, enforce the rights, and administer the remedies of the plaintiff in the suit.

Proceedings to compel by fine or imprisonment obedience to such a mandamus, or to coerce obedience to an order of a court made in a civil suit to enforce the rights or administer the remedies to which a court of competent jurisdiction decides that a party to the suit is entitled, are not executions of the criminal laws of the land, but proceedings to secure suitors their legal rights, and the president is without authority, under the grant to him of power to issue reprieves and pardons for offenses against the United States, to relieve from imprisonment to enforce obedience, or to pardon for disobedience of, such a mandamus or order, because he may not release or destroy the legal rights or remedies of private citizens.

Suggestions relative to this power, but no decision of the question of its existence.

Each court has exclusive jurisdiction of contempts of its authority, and of disobedience of its orders and processes, and no other court may lawfully admit to bail or relieve or discharge a prisoner fined or committed for disobedience of its orders, writs, or processes by a court which had jurisdiction to make the orders and to issue the committment.

The court which commits or fines to enforce obedience to its orders, for the purpose of securing the rights of suitors, has plenary power to modify, suspend, or relieve from the fine or imprisonment, either in the original case or in a proper auxiliary proceeding.

George C. Worth, for petitioners.

Before SANBORN, Circuit Judge, and LOCHREN, District Judge.

SANBORN, Circuit Judge.

This case comes before the court upon the petition of two of the judges of the county court of St. Clair county, in the state of Missouri, and upon the petition of their counsel of their counsel for the issue of the writ of habeas corpus to relieve these judges from an imprisonment which they are enduring until such time as they shall comply with a mandamus of the United States circuit court for the Western division of the Western district of Missouri, which directs these judges to levy a tax to make a partial payment upon a judgment which Joseph M. Douglas recovered against the county of St. Clair on February 9, 1894, and to make partial payments upon other judgments of like character based upon certain bonds of the county of St. Clair.

A writ of habeas corpus cannot be made to perform the office of a writ of error. It may not be invoked to review or avoid an erroneous judgment of a court of competent jurisdiction. It challenges the jurisdiction of the court alone, and is available only to relieve a prisoner from the restraint imposed by a judgment or order that is absolutely void on the ground that the court was without the power to make it. In re Debs, 158 U.S. 564, 600, 15 Sup.Ct. 900, 39 L.Ed. 1092; Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650; Ex parte Yarbrough, 110 U.S. 651, 4 Sup.Ct. 152, 28 L.Ed. 274; Ex Parte Terry, 128 U.S. 289, 305, 9 Sup.Ct. 77, 32 L.Ed. 405; In re Swan, 150 U.S. 637, 14 Sup.Ct. 225, 37 L.Ed. 1207; U.S. v. Pridgeon, 153 U.S. 48, 14 Sup.Ct. 746, 38 L.Ed. 631; Deming v. McClaughry, 51 C.C.A 349, 113 F. 639, 649; In re Reese, 47 C.C.A. 87, 107 F. 942, 948; Ex parte Buskirk, 72 FED. 14, 21, 18 C.C.A. 410, 417, 25 U.S.App. 613, 615; Ex parte Ayers, 123 U.S. 443, 8 Sup.Ct. 164, 31 L.Ed. 216; Ex parte Fisk, 113 U.S. 713, 718, 5 Sup.Ct 724, 28 L.Ed. 117; Dynes v. Hoover, 20 How. 81, 83, 15 L.Ed. 838; Ex parte Reed, 100 U.S. 13 23, 25 L.Ed. 538; Ex parte

Page 450

Coy, 127 U.S. 731, 8 Sup.Ct. 1263, 32 L.Ed. 274; Rose v. Roberts, 99 F. 948, 40 C.C.A 199. In view of this universal rule, the facts and the law which condition the merits of the controversy over the validity of the bonds which form the bases of the judgments against the county and the foundation of the mandamus and commitments to enforce those judgments are immaterial to the questions which these petitioners present, and it would be useless to recite or review them here. The curious will find a demonstration of the proposition that the circuit court could have rendered no other judgment in this case, and that it could not have done less than to issue the mandamus and the commitments without a defiant disregard of the settled law of the land and of the controlling decisions of the supreme court upon the questions before it in the cases of In re Copenhaver (C.C.) 54 F. 660; Henry Co. v. Nicolay, 95 U.S. 619, 24 L.Ed. 394; Scotland Co. v. Thomas, 94 U.S. 682, 24 L.Ed 219; Trust Co. v. Debolt, 16 How. 416, 432, 14 L.Ed. 997; Gelpcke v. City of Dubuque, i Wall. 206, 17 L.Ed. 520; Seibert v. Lewis, 122 U.S. 284, 7 Sup.Ct. 1190, 30 L.Ed. 1161; Bronson v. Kinzie, 1 How. 317, 11 L.Ed. 143; Louisiana v. City of New Orleans, 102 U.S. 206, 26 L.Ed. 132; Flagg v. City of Palmyra, 33 Mo. 440; Smith v. Clark Co., 54 Mo. 71-74, Macon Co. Case, 41 Mo. 453; State v. Sullivan Co. Ct., 51 Mo. 522; and State v. Greene Co., 54 Mo. 540.

The only question for our consideration, therefore, is whether or not the petitions state any facts which show or tend to show, that the circuit court was without jurisdiction to render the judgments or to issue the mandamus or the commitments. The only judgment specified in the petition under which it is alleged that the mandamus issued is a judgment of Joseph M. Douglas against the county of St. Clair, rendered on February 9, 1894, and for the sake of brevity this will be the only judgment mentioned in the discussion of the questions presented in this case. It is not claimed that the court below did not have the general power to render this judgment and to issue the mandamus and the commitments thereunder, nor that the parties to the action or its subject-matter were without the jurisdiction of the circuit court. The only ground upon which it is asserted that the judgment, the mandamus, or the commitments are void is that the judge who presided in the circuit court was disqualified from acting as such when these proceedings were taken. It is conceded that the better rule, supported by the great weight of authority, is that the judgments and orders of courts composed of disqualified judges are void. Deming v. McClaughry, 51 C.C.A. 349, 113 F. 630, 651; Case v. Hoffman, 100 Wis. 314, 356, 75 N.W. 945, 44 L.R.A. 728; Oakley v. Aspinwall, 3 N.Y. 547, 552; Low v. Rice, 8 Johns. 409; Clayton v. Per Dun, 13 Johns. 218; Edwards v. Russell, 21 Wend. 63; People v. Connor, 142 N.Y. 130, 133, 36 N.E. 807; Chambers v. Clearwater, *40 N.Y. 310, 314; Sigourney v. Sibley, 21 Pick. 101, 106, 32 Am.Dec. 248; Gay v. Minot, 3 Cush. 352; Hall v. Thayer, 105 Mass. 219, 224, 7 Am.Rep. 513; Railway Co. v. Summers, 113 Ind. 10, 17, 14, N.E. 733, Am.St.Rep. 616; Ochus v. Sheldon, 12 Fla. 138; Chambers v. Hodges, 23 Tex. 112;

Page 451

Gains v. Barr, 60 Tex. 676, 678; Templeton v. Giddings (Tex. Sup.) 12 S.W. 851. But what constitutes disqualification? Generally speaking, the answer may be: Interest in the subject-matter of the litigation, relationship to one or more of the parties to it, and statutory prohibitions. For which of these causes do the averments of the petitions charge that the judge who tried this case was disqualified? The judgment in favor of Douglas was rendered in February, 1894. The mandamus and the commitments have issued since that date. The allegations of the petition are that before 1888, when he went on the bench of the federal court, and in the year 1860, one of the judges who presided when this judgment was rendered, and the judge who issued the mandamus and the commitments, was named in the act of the legislature of the state of Missouri as one of fourteen members of the board of directors of the railroad company to which the bonds were subsequently issued; that he qualified as such director; that he was active and instrumental in procuring the issue of the bonds, and in the business of the company, until 1870, when it transferred its franchises to another corporation; that he was one of the legal advisers of the parties to the bonds down to the year 1888; that he was for many years prior to that date counsel for the...

To continue reading

Request your trial
293 practice notes
  • 182 F.Supp. 18 (S.D.N.Y. 1960), Chicago Title & Trust Co. v. Fox Theatres Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • March 1, 1960
    ...facts tend to show corruption of Manton is beyond me. Manton had every right to inquire about the negotiations. See In re Nevitt, 8 Cir., 117 F. 448. The Delaware receiver had the right and, indeed, the duty to talk to counsel for the Fox Theatres about a proposed settlement. That Manton ma......
  • 202 F. 51 (4th Cir. 1912), 1,122, Kirsner v. Taliaferro
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • December 21, 1912
    ...coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in Re Nevitt, 117 F. 461 (54 C.C.A. 635), 'he carries the keys of his prison in his own pocket.' He can end the sentence and discharge himself at any moment by doing w......
  • 24 B.R. 930 (E.D.Ark. 1982), 800414, In re Cox Cotton Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Arkansas
    • November 17, 1982
    ...by fine and imprisonment, because this authority is an attribute of judicial power as inherent and indispensable as a judge. In re Nevitt, 117 F. 448, 455 (8th Cir.1902) (emphasis added). See also Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919) (the contempt pow......
  • 903 F.2d 1568 (Fed. Cir. 1990), 89-1624, Spindelfabrik Suessen-Schurr v. Schubert & Salzer Maschinenfabrik Aktiengesellschaft
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • May 17, 1990
    ..."carry 'the keys of their prison in their own pockets.' " Shillitani, 384 U.S. at 368, 86 S.Ct. at 1534 (quoting In re Nevitt, 117 F. 448, 461 (8th Cir.1902)). Where the sanction is a fine designed to secure compliance, however, the contemnor in a civil contempt can avoid the sanc......
  • Request a trial to view additional results
290 cases
  • 182 F.Supp. 18 (S.D.N.Y. 1960), Chicago Title & Trust Co. v. Fox Theatres Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • March 1, 1960
    ...facts tend to show corruption of Manton is beyond me. Manton had every right to inquire about the negotiations. See In re Nevitt, 8 Cir., 117 F. 448. The Delaware receiver had the right and, indeed, the duty to talk to counsel for the Fox Theatres about a proposed settlement. That Manton ma......
  • 202 F. 51 (4th Cir. 1912), 1,122, Kirsner v. Taliaferro
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • December 21, 1912
    ...coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in Re Nevitt, 117 F. 461 (54 C.C.A. 635), 'he carries the keys of his prison in his own pocket.' He can end the sentence and discharge himself at any moment by doing w......
  • 24 B.R. 930 (E.D.Ark. 1982), 800414, In re Cox Cotton Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Arkansas
    • November 17, 1982
    ...by fine and imprisonment, because this authority is an attribute of judicial power as inherent and indispensable as a judge. In re Nevitt, 117 F. 448, 455 (8th Cir.1902) (emphasis added). See also Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919) (the contempt pow......
  • 903 F.2d 1568 (Fed. Cir. 1990), 89-1624, Spindelfabrik Suessen-Schurr v. Schubert & Salzer Maschinenfabrik Aktiengesellschaft
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • May 17, 1990
    ..."carry 'the keys of their prison in their own pockets.' " Shillitani, 384 U.S. at 368, 86 S.Ct. at 1534 (quoting In re Nevitt, 117 F. 448, 461 (8th Cir.1902)). Where the sanction is a fine designed to secure compliance, however, the contemnor in a civil contempt can avoid the sanc......
  • Request a trial to view additional results
1 firm's commentaries
  • Brown v. Executive 200
    • United States
    • JD Supra United States
    • January 27, 2012
    ...Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his own pocket, In re Nevitt (C.A. 8, 1902), 117 F. 448, 461, since he will be freed if he agrees to do as ordered. Criminal [ 64 Ohio St. 2d 254 ] contempt, on the other hand, is usually characterize......
1 books & journal articles
  • Contempt
    • United States
    • West's Encyclopedia of American Law Com–Dor
    • January 1, 2005
    ...the contemnor "carries the keys to his prison in his own pocket" and can be released by complying with the court (In re Nevitt, 117 F. 448 [8th Cir. 1902]). Civil contempt proceedings end when the suit from which they arose is resolved. Criminal contempt continues as a separate ma......