Blanchard v. Bryan

• Decision Date: 12 July 1921
• Docket Number: Case Number: 12074
• Citation: Blanchard v. Bryan, 200 P. 444, 83 Okla. 33, 1921 OK 285 (Okla. 1921)
• Parties: BLANCHARD v. BRYAN et al.
• Court: Oklahoma Supreme Court

1921 OK 285

200 P. 444

83 Okla. 33

BLANCHARD v. BRYAN et al.

Case Number: 12074

Supreme Court of Oklahoma

Decided: July 12, 1921

Syllabus

¶0 1. Injunction -- Indirect Contempt--Violation of Injunction Affecting Private Rights. Where a complaint charges a person with the violation of an injunction or restraining order made by a court or judge of this state, which injunction order was issued either for the protection of, or enforcement of a private right, and the violation of such order was not committed in the presence of the court, such a complaint charges an indirect contempt, and not a direct contempt.

2. Jury--Jury Trial--Constitutional Right--Indirect Contempt. Under section 25, art. 2, Constitution of Oklahoma, a person charged with an indirect contempt shall, upon demand, and before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused.

3. Habeas Corpus -- Indirect Contempt Refusal of Jury Trial -- Invalidity of Orders. When a person is charged with an indirect contempt and has demanded a jury trial and such demand has been refused by the trial court, any order made by such trial court adjudging the accused guilty of contempt or attempting to commit him to jail or which imposes any other penalty, is void.

4. Habeas Corpus--Scope of Inquiry. The inquiry of the state Supreme Court on writ of habeas corpus is not limited to a consideration of the question of jurisdiction of the person and the subject-matter; but the jurisdiction of the court to render the particular judgment or issue the process is a proper subject of inquiry.

Biddison & Campbell, for petitioner.

Louis W. Pratt, for respondents.

MILLER, J.

¶1 This is an original proceeding in habeas corpus instituted in this court by E. F. Blanchard, who alleges that he is unlawfully, illegally, and wrongfully restrained of his liberty by William McCullough, sheriff of Tulsa county, Oklahoma, and is confined in the common jail of said Tulsa county on account of proceedings had in a certain action pending in the district court of Tulsa county, being No. 12995, entitled J. W. Bryan and M. E. Bryan v. The Park Addition Company. This proceeding was by proper orders of this court referred to Hon. Paul A. Walker, one of the referees of this court, to hear the testimony, make his findings of fact and conclusions of law thereon and report the same to this court. There was also filed in this court a companion case, No. 12075. In re W. A. Corbett, Petitioner, against the same respondents. The two cases were submitted to the referee on the same testimony. The referee has filed his report herein and in his findings of fact he makes a complete statement of the case, which is as follows:

"Findings of Fact.

"1. The referee finds that the action in which the orders were made, under which each of the defendants was restrained of his liberty at the commencement of these proceedings, was originally commenced in the district court in and for Tulsa county, Oklahoma, by J. W. Bryan and M. E. Bryan as plaintiffs, against the Park Addition Company, a corporation, defendants, and there numbered 12995, and that said action was commenced on the 14th day of December, 1920. Petitioner E. F. Blanchard was president at all times of the defendant corporation. Petitioner W. A. Corbett was not at any time a party to said action.

"2. The referee finds that on said 14th day of December, 1920, there was made in said action of J. W. Bryan and M. E. Bryan, Plaintiffs, v. Park Addition Company, Defendant, No. 12995, in the district court of Tulsa county, by the Honorable Redmond S. Cole, Judge of said court, in open court, the following order:

" 'Now, on this 14th day of December, 1920, this cause coming on to be heard upon the application of plaintiffs for a temporary restraining order, upon the verified petition of plaintiff, and for the assignment of the application of plaintiff, a temporary injunction for hearing upon a day certain, and it appearing to the court that defendant, its officers, agents, servants, attorneys, and employes, threatened and proposed to wrongfully declare and enforce a forfeiture and cancellation of a certain lease between defendant and Electric Park Amusement Company, upon and covering a parcel or tract of land in Park addition to the town of Red Fork, Tulsa county, Oklahoma, known as Electric Park, near the right of way of the Oklahoma Union Railway Company's right of way, and to commence an action for the purpose of procuring possession thereof, in alleged violation of the rights of plaintiffs, and the court being advised in the premises, finds that its restraining order should issue herein as prayed for, and that a day be assigned whereupon plaintiffs' application for a temporary injunction may be heard.

" 'It Is Therefore Ordered, that the application of plaintiffs for a temporary injunction in this cause, be, and the same is hereby assigned and set for hearing upon the 27th day of December, 1920, at the hour of nine o'clock a. m., or as soon thereafter as the same may be heard by the court, and that pending said hearing, the defendant, its servants, agents, officers, attorneys and employes, be, and they and each of them are hereby restrained from in any manner and wise interfering with the possession of the land above described, from declaring and enforcing forfeiture of said lease, from taking possession of said land from Electric Park Amusement Company, its servants, agents, employes, or officers, from prosecuting and maintaining any suit or action respecting the possession of said land and property and improvements thereon, and from any manner interfering with the rights of plaintiffs therein and thereto.

"'Done in open court this 14th day of December, 1920.'

"3. The referee finds that on the 19th day of February, 1921, there was made by the district court of Tulsa county, by the Honorable A. C. Brewster, assigned judge to hold court in said district in the city of Tulsa, the following order:

"'Now, on this 19th day of February, 1921, this cause duly coming on to be heard upon an application of the plaintiff J. W. Bryan, for an order of this court restraining the said defendant the Park Addition Company, from a violation of a restraining order heretofore issued by this court and now in force.

"'And it appearing to the court's satisfaction that the said Park Addition Company has this day discontinued the service of electricity to the said Electric Park Amusement Company and that such act of the defendant is in violation of such restraining order heretofore granted and now in force.

"'It is hereby ordered that the defendant be and is hereby ordered to forthwith restore the service of electricity to the said Electric Park Amusement Company's premises in compliance with the terms of the lease made by the said Park Addition Company to the Electric Park Amusement Company and that said defendant be restrained from failing to perform any act on its part to be performed under the terms of its lease and is hereby ordered to continue the service to the said Electric Park Amusement Company in the same manner as heretofore furnished by lessor in and under the terms of the said lease.

"'Done in the open court this 19th day of February, 1921.'

"4. The referee further finds that no other injunctional order was had in said action, nor was the property referred to in either of said injunctional orders taken into the custody of the court.

"5. The referee finds that the order made by the Honorable A. C. Brewster on the 19th day of February, 1921, quoted herein, was supplemental to and interpretative of the order of December 14, 1920, made by the Honorable Redmond S. Cole, quoted herein, and was not intended as an injunction except in as it construed and interpreted the order of December 14, 1920, and that said order of February 19, 1921, was intended to be and remain in force as an interpretative order of the order of December 14, 1920, and to be governed by the conditions of said order of December 14, 1920, as to the time it should remain in effect.

"6. The referee finds that by subsequent orders of the court, the said two orders before referred to, were continued and now remain in force as originally made, and that final hearing upon application for temporary injunction has not been had, and the referee further finds that each of said orders was served upon the defendant Park Addition Company shortly after being made by the court, by delivering copies thereof to its president, the petitioner, E. F. Blanchard.

"7. The referee finds that the proceedings by which each of the petitioners were ultimately restrained of his liberty as complained of in the petition herein was instituted in said cause No. 12995 in the district court in the following manner: The said proceedings were instituted by the filing in said court of the following application for citation:

"'In the District Court Within and For the County of Tulsa, State of Oklahoma. J W. Bryan and M. E. Bryan v. Park Addition Company, No. 12995. Application for Citation.

"'The plaintiffs above named respectfully petition this honorable court that a citation or attachment be issued directing the defendant above named and E. F. Blanchard, president of defendant, to appear before this honorable court and show cause why said defendant and said E. F. Blanchard should not be punished for disobedience of a temporary restraining order issued in the above action on December 14, 1920, and a supplemental order of this court duly made on the 19th day of February, 1921, as a contempt of court; and that said defendant and E. F. Blanchard be required to immediately restore the electric lighting service as required by said order of February 19, 1921; and give security to obey the orders of this honorable court and in default thereof be committed to custody until the orders of this honorable court have been fully complied with or said defendant and E. F. Blanchard be otherwise legally discharged; and for

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