Bankston v. Lakeman

• Decision Date: 06 June 1929
• Docket Number: 400.,6 Div. 213
• Citation: 122 So. 819,219 Ala. 508
• Parties: BANKSTON v. LAKEMAN. EX PARTE BANKSTON.
• Court: Alabama Supreme Court

122 So. 819

219 Ala. 508

BANKSTON v. LAKEMAN.

EX PARTE BANKSTON.

6 Div. 213, 400.

Supreme Court of Alabama

June 6, 1929

Appeal from Circuit Court, Winston County; Ernest Lacy, Judge.

Suit in equity by E. P. Lakeman against James M. Bankston, in which there was a decree for complainant. From a decree adjudging defendant to be in contempt for violation of said decree, he appeals and brings petition for certiorari. Writ denied appeal dismissed.

Williams & Chenault, of Russellville, for appellant and petitioner.

T. B Russell, of Haleyville, and R. A. Cooner, of Jasper, for appellee.

BOULDIN J.

By these proceedings, James M. Bankston seeks to review or vacate an order and decree committing him for contempt because of violation of a writ of injunction granted on final hearing of a bill in equity.

No. 213 is an appeal, the record filed here containing much of the record in the original injunction suit, and all the proceedings, including testimony taken, on the hearing for contempt. It was, on April 25, 1929, submitted on motion to dismiss the appeal and on merits.

Thereafter on April 27th, petition for certiorari was filed in this court, docket No. 400, making reference to and in effect incorporating therein the contents of the record on appeal. The certiorari case was submitted May 16, 1929, and the two cases are considered together.

The rule has been long settled in this state that contempt proceedings are not reviewable by appeal under our statutes. The remedy is by certiorari. Easton v. State, 39 Ala. 551, 87 Am. Dec. 49; Ex parte Dickens, 162 Ala. 272, 277, 50 So. 218; Alabama Power Co. v. Adams, 191 Ala. 54, 67 So. 838; Board of Revenue v. Merrill, 193 Ala. 542, 68 So. 971; Preskitt v. Chandler, 214 Ala. 278, 107 So. 750.

Appellant submits that this rule should be departed from because of the inadequacy of the remedy by common-law certiorari in that it does not bring up the issue on the facts.

In the absence of statute, the rule generally prevailing is the same as ours. 13 C.J. 101. It does not appear that in the course of our judicial history the delicate but essential power to punish for contempt has been so abused as to call for legislative action in this regard.

In dealing with the violation of injunctions or other orders of court involving a course of conduct continuous in character, the rights of both parties might possibly be better safeguarded by a full review on the facts as well as the law. If so, the remedy is with the Legislature.

Dealing with the case on certiorari, the trial court, in an opinion accompany the decree adjudging petitioner guilty of contempt, made a full finding of facts and his conclusion thereon. We commend this course. Long ago, in Easton v. State, 39 Ala. 553, 87 Am. Dec. 49, this court approved the words of Chief Justice Ruffin in Ex parte Summers, 27 N.C. 149, saying:

"Therefore, it befits every court, which has a proper tenderness for the rights of the citizen and a due respect to its own character, to state the facts explicitly, not suppressing those on which the person might be entitled to be discharged, more than it would insert others, which did not exist, for the sale of justifying the commitment. A court, which knows its duty, and is not conscious of violating it, will ever be desirous of putting upon the record, or in its process, the truth of the case, especially as thereby a higher court may be able to enlarge a citizen illegally committed or fined. But if the commitment or fine be in a general form for a contempt, all other courts are bound by it, and the party can only free himself, by purging the contempt before the court that has adjudged it."

The statement of facts made by the trial court in the case at bar, being the facts on which our decision must rest, is here set out:

"Prior to and during a part of November, 1924, the defendant, J. M. Bankston, was publishing in the town of Haleyville, Ala., a newspaper known as 'The Haleyville Journal,' and conducting a job-printing business in the town of Haleyville, Ala. In said month of November, 1924, said Bankston sold to the complainant, E. P. Lakeman, his newspaper and job-printing outfits and businesses and the good will thereof, and specifically agreed to not again engage in the newspaper and job-printing businesses in the town of Haleyville, Ala., so long as such businesses were engaged in by the complainant, Lakeman, in Haleyville. Since said sale, said complainant, Lakeman, has continuously published a newspaper, known as 'The Advertiser-Journal,' and conducted a job-printing enterprise at Haleyville, Ala.

"In the month of June, 1926, the defendant, bankston, in violation of his contract, opened up and conducted a job-printing business, and began the publication of a newspaper at Haleyville, known as 'The Haleyville Spotlight.' Complainant Lakeman brought suit to enjoin Bankston from publishing 'The Spotlight,' and from carrying on his job-printing business, and upon the submission of the cause upon the pleadings and proof, a decree was rendered, holding the publication by Bankston of 'The Spotlight' and his operation of a job-printing business were in violation of

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