State v. Irwin
| Decision Date | 19 November 1887 |
| Citation | 4 S.E. 413,30 W.Va. 404 |
| Parties | STATE ex rel. PELTON v. IRWIN et al. |
| Court | West Virginia Supreme Court |
Submitted June 18, 1887.
Syllabus by the Court.
A contempt of court is in the nature of a criminal offense, and the proceeding for its punishment is criminal in its character. [1]
Where a defendant in a suit in equity disobeys the process, order, or decree of the court, the regular and proper proceeding for such contempt is for the plaintiff to file an affidavit setting up such fact, and move the court to issue a rule in the cause between the original parties; and when such rule is issued, served on the defendant, and returned to the court then the contempt proceeding should be entirely separate from the chancery suit, and placed on the law docket, entitled the state of West Virginia, at the relation of the party at whose instance it was issued, against the offender, and be prosecuted on the law side of the court to judgment; and, if the rule is made absolute, the defendant should pay the costs, and, if it is discharged, it should be at the cost of the relator. To a judgment against the offender he may obtain a writ of error.
But if such proceeding is had on the chancery side of the court, and the order there entered, such court has no jurisdiction, but to reverse the order, the defendant is entitled to his writ of error.
While the statute has made all contempts criminal in their nature and all fines imposed therefor go to the state, yet it has not attempted to take away the wise discretion of courts over the punishment for contempt, to enable them, by proper coercive measures, to compel obedience to their orders, by imprisoning at the pleasure of the court, or "until the further order of the court;" so that, when the recalcitrant party submits, the court may release him from imprisonment.
An injunction granted, but not to take effect or be in force until the plaintiff executes a bond, is a conditional granting of the injunction. So, where such an injunction was granted on the fourteenth of July, 1886, the bond increased on the eighteenth of August, 1886, and no bond executed until the eleventh of October, 1886; and on the twenty-first of August and thirty-first of the same month, in the year 1886, acts were done which would have been contempt had the injunction been in force: held, that the injunction did not take effect until after the acts were done, and there was no breach of the injunction; consequently no contempt of the injunction order committed. [2]
Error to circuit court, Wyoming county; D. E. JOHNSTON, Judge.
This was an action for the specific performance of a contract, and was brought by Jeremiah M. Pelton against Jesse R. Irwin Harris Hoyt, Alvin Irwin, Charles F. Thomas, and Nathaniel R. Benson. During the proceedings, an order for contempt of court was made against the defendants Irwin and Hoyt, committing them to jail. Said defendants then brought writ of error.
R. C. McClaugherty and J. M. French, for plaintiffs in error.
Watts & Camden, (Alfred R. Page, of counsel,) for defendant in error.
Atty. Gen. A. Caldwell, for the State.
Pelton filed his bill in the circuit court of Wyoming county, in which he alleges that the defendants Jesse R. Irwin and Harris Hoyt represent themselves to be the owners of a certain tract of land in Wyoming and McDowell counties, known as the "Morris 480,000 Acre Tract," and also a certain other tract adjoining the same, known as the "Morris 320,000 Acre Tract," and that on the tenth day of September, 1884, by a certain writing under seal, agreed to sell unto the plaintiff, for the consideration of $5,000, receipt of part of which was in said writing acknowledged, and for other considerations therein expressed, an undivided third part of each of said two tracts; but, as to the second tract, it was stipulated, "or one-third part of so much of the second-named tract as should be recovered,"--it being represented in said contract that the title to said lands was then clouded by liens for arrears of taxes and other claims, which it was agreed therein should be paid off, and the title cleared therefrom, by the said $5,000; and the said Irwin and Hoyt agreed therein to execute to the plaintiff a good warranty deed for said one-third of said lands; and they further agreed to use all due diligence, and make all necessary exertion, to make surveys, and clear the titles in the best manner. That he paid the sum of $5,000 on account of said contract, that being the consideration money by said contract required to be paid by the plaintiff; and in all other respects he has performed his part of said agreement, in so far as he has not been prevented by reason of the defendants failing to perform their part. The bill charges that, at the time said contract was made, neither said Irwin nor Hoyt had title to the said land, as the premises, as the plaintiff was informed and believed, had been sold for taxes. That the tract of 480,000 acres was sold by the commissioner of school lands, and bought by the defendant Irwin; and that on twenty-first day of April, 1886, the said defendant Irwin, by deed, conveyed to defendant Hoyt one-fourth of said 480,000 tract of land. By reason of the deed from the commissioner of school lands to Irwin, and the deed from Irwin to Hoyt, the said defendants became seized in fee of said tract of land, unincumbered from taxes, or other lien; "and that they are still seized of a sufficient quantity thereof to answer your orator's demand." That plaintiff has frequently requested and demanded that the defendants Irwin and Hoyt should perform the contract on their part, which they have refused to do. The bill further charges that the defendants Irwin and Hoyt have confederated with Alvin Irwin, Nathaniel R. Benson, and Charles F. Thomas, and divers persons unknown to the plaintiff, and pretend that said Irwin has agreed with said Benson, Thomas, and others for a loan of $25,000, for the payment of which said defendant has incumbered the said lands by mortgage to said Benson, although but a small portion of said money has been paid. This has been done to the great prejudice of the right of plaintiff, and against his protest, expressed to Irwin and Hoyt. And, as a part payment of said loan, Irwin has conveyed to Charles F. Thomas an undivided fourth interest in said tract of 480,000 acres, greatly to the prejudice of plaintiff's right, and against his protest. That said Irwin also delivered for record to the clerk of the county court of Wyoming county a deed, duly acknowledged, dated on the twenty-first day of April, 1886, purporting to convey to Alvin Irwin an equal fourth part of said land. He charges this deed was without consideration. He then propounds to the defendants certain interrogations, and further charges that the defendants threaten to convey and incumber the whole or some part of said tracts of land, and to grant the right to enter upon said lands, and remove timber therefrom. He makes all the parties named defendants, and prays a specific execution of his contract; that if the contract cannot be specifically performed, according to the terms thereof, by reason of the acts of the defendants, that a partial performance may be decreed, and that a sufficient sum may be adjudged to be paid plaintiff by defendants Irwin and Hoyt to compensate him for the damage suffered by him. He also prayed an injunction against Jesse R. Irwin and Harris Hoyt, their agents, etc., "from executing or delivering any deed of conveyance of the whole or any part of the said lands, or from incumbering the same in any way whatsoever, or from granting to any party the right to cut or transport from said lands any timber, or from cutting or transporting timber, therefrom, during the pendency of this suit; and further restraining the said defendants Jesse R. Irwin and Harris Hoyt, their agents, attorneys, or servants, or either of them, from receiving or accepting any further or other sums of money, and restraining the said defendant Nathaniel R. Benson, and his agents, attorneys, or servants, from paying over to the defendants Jesse R. Irwin and Harris Hoyt any sums of money that may be or may become due upon the mortgage now an incumbrance on said lands."
The injunction was granted as prayed on the fourteenth day of July, 1886, "but not to take effect or be in force until the plaintiff, or some one for him, file, with the papers in this cause, bond, with security to be approved by the clerk of this court in the sum of $250, conditioned to pay all such costs as may be awarded the defendants should this injunction be dissolved." Notwithstanding that no bond was executed, on the second day of August, 1886, a notice was accepted by counsel of the plaintiff from the defendants that the said defendants would on the fourteenth day of August, 1886, in vacation, move the judge of the circuit court of the Ninth judicial circuit (who was the judge of the circuit court of Wyoming county) to dissolve the said injunction. The notice recites the fact that no bond had been executed, and asks that if said bond is thereafter given, that its penalty be increased to at least $5,000. The judge, in vacation, heard the motion on the eighteenth day of August, it having been continued until then at the request of all parties; and on the consideration of said motion the judge read the affidavits of said Irwin, and a certificate of the clerk of the circuit court of Wyoming county, that said injunction bond, required in the order granting the injunction, had not been given; and the judge in his order, declared that "said injunction is dissolved, and shall stand dissolved until the plaintiff, or some one for him, execute a bond before the clerk of Wyoming...
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