Red River Valley Brick Corp. v. City of Grand Forks

• Decision Date: 13 April 1914
• Citation: 146 N.W. 876,27 N.D. 431
• Parties: RED RIVER VALLEY BRICK CORPORATION et al. v. CITY OF GRAND FORKS et al.
• Court: North Dakota Supreme Court

27 N.D. 431

146 N.W. 876

RED RIVER VALLEY BRICK CORPORATION et al.

v.CITY OF GRAND FORKS et al.

Supreme Court of North Dakota.

March 6, 1914.

Rehearing Denied April 13, 1914.

Syllabus by the Court.

The facts in this case disclose a civil contempt, and an appeal lies to this court from an order of the trial court finding the defendants not guilty.

Evidence examined, and held to show the defendants guilty of contempt of court. Held, that it is the duty of the trial court to so hold, notwithstanding that the defendants acted in good faith and that no damage had resulted to plaintiff. If clemency in the premises should be shown, the proper place for its exercise is in the imposition of the sentence.

The punishment rests in the sound discretion of the trial court, under section 7562, Rev. Codes 1905, and the fine may be nominal. In addition to the fine, the plaintiff should be allowed to tax costs, including statutory attorney's fees.

Appeal from District Court, Grand Forks County; Kneeshaw, Judge.

Contempt proceedings by the Red River Valley Brick Corporation and others against the City of Grand Forks and others. From judgment for defendants, plaintiffs appeal. Reversed in part and affirmed in part.George A. Bangs and George R. Robbins, both of Grand Forks, for appellants. J. B. Wineman, of Grand Forks, for respondents.

BURKE, J.

During the year 1911 the city of Grand Forks, acting through its city council and under the provisions of article 20, Political Code, R. C. 1905, attempted to annex certain territory contiguous to said city, which territory included about ten acres of land belonging to this plaintiff. On the 11th of March, 1912, an action was instituted to determine the validity of the proceedings, and upon the trial below it was determined that all of said proceedings were void, and the defendant city and its officers were perpetually enjoined from proceeding with the said annexation. This injunction was dated the 6th day of May, 1912, and on the 22d of the same month defendant perfected an appeal to this court; a bond being expressly waived. On the 25th of May, 1912, plaintiff filed an affidavit alleging that the defendants were violating the injunction order by proceeding with the levy of the city tax upon the said territory, and again on the 7th of June another affidavit was filed alleging that the city of Grand Forks, its assessor, mayor, auditor, and city attorney, had violated the injunction order of the court, and an order was asked requiring them to show why they should not be punished for contempt. This order was issued and served upon all of the defendants excepting the mayor, who was absent from the state. Upon the return day the defendants appeared specially and objected to the jurisdiction of the court, and filed answers denying that they had acted willfully and contumaciously, particularly disclaiming any intention of being disrespectful to the court, and alleging that they had been actuated alone by a desire to perform their duties as officials of the city of Grand Forks and to protect the interests of the public by complying with the provisions of the statute relative to the assessment of property. Interrogatories were prepared, and in answer thereto the said officials admitted that they had proceeded with the assessment of plaintiff's premises, but had done so upon the advice of the city attorney and upon the belief that the appeal to the Supreme Court had superseded the effects of the injunction. The case was tried before the trial court, who found that the defendants were not guilty of any intentional contempt as charged, and dismissed the proceedings. This appeal is from such finding and order. The defendants appealed the original case, involving the validity of the annexation proceedings, to this court as before mentioned, and the judgment was affirmed. See Brick Co. v. Grand Forks, 145 N. W. 725.

[1] 1. The first point arising is whether or not an appeal will lie from this order. Respondent takes the ground that this is a criminal contempt, and the finding of the trial court amounts to an acquittal of the charge; but we do not think this view can be sustained. In Morgan's Sons v. Gibson, 122 Fed. 420, 59 C. C. A. 46, it is said: “Contempts of court are of two kinds: Those that are prosecuted to punish persons for showing disrespect to the courts, either by offensive conduct in their presence or by setting their authority in defiance, in the prosecution of which the entire public is immediately interested because the welfare of the courts is concerned; and those contempt proceedings that are inaugurated at the instance of some private litigant or litigants to compel obedience to an order or decree made in the case for the protection of their individual rights. In the latter class of cases the public at large is not directly interested. The...