Chadwick v. Alleshouse, 30839

• Decision Date: 22 January 1968
• Docket Number: No. 30839,30839
• Citation: 250 Ind. 348,233 N.E.2d 162
• Parties: Clifton W. CHADWICK and James W. Brichfield, Appellants, v. Herbert ALLESHOUSE and Roberta Alleshouse, Robert Ferris and Betty Ferris, Galon P. Noll and Beatrice J. Noll, Appellees.
• Court: Indiana Supreme Court

Page 162

233 N.E.2d 162

250 Ind. 348

Clifton W. CHADWICK and James W. Brichfield, Appellants, v. Herbert ALLESHOUSE and Roberta Alleshouse, Robert Ferris and Betty Ferris, Galon P. Noll and Beatrice J. Noll, Appellees.

No. 30839.

Supreme Court of Indiana.

Jan. 22, 1968.

Winslow Van Horne, Auburn, for appellants, Van Horne & Van Horne, Auburn, of counsel.

Gerald Deller, Albert M. Friend, Angola, for appellees, Deller, Dygert & Friend, Angola, of counsel.

MOTE, Judge.

This is an appeal from a judgment of the Steuben Circuit Court adjudging the Appellants in contempt of court for the alleged violation of a permanent injunction issued on May 7, 1962 in another action as a final judgment, as follows:

'It is, therefore, considered, adjudged and decreed by the Court that the defendants, and each of them, and their heirs, assigns, agents, employees or successors in interest be and they are hereby perpetually enjoined from operating or permitting the operation upon the premises now owned and/or occupied by said defendants, or either of them of any races, test runs or time trials by automobiles, motor vehicles, race cars or other combustion power propelled vehicles and from the use or employment in connection with said activities of spot lights, loud speakers or public address installations or systems.'

The judgment, as corrected on June 11, 1965, was entered after a trial of the issues joined by Appellees' Petition for a Rule to Show Cause why Appellants should not be punished for violation of the permanent injunction issued on May 7, 1962. The said Petition was filed in court on July 22, 1964 and contained specifications of alleged violation from (a) to (g), both inclusive.

At the conclusion of the trial without a jury, the court made a finding for the petitioners (Appellees) and against Appellants, entering the judgment from which this appeal is taken, which judgment was as follows:

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the court that the defendant Edna K. Chadwick is not guilty of contempt of court and that the plaintiffs take nothing by this affidavit and petition against her.

The Court now finds for the defendant Mary Lou Birchfield and against the plaintiffs upon the affidavit and petition as to her.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the plaintiffs take nothing by their affidavit and petition and that the defendant Mary Lou Birchfield is not guilty of contempt of this court.

The Court further finds for the plaintiffs and against the defendant Clifton W. Chadwick upon the affidavit and petition and that the defendant Clifton W. Chadwick is guilty of contempt of the order of this court.

IT IS FURTHER ORDERED BY THE COURT that the defendant Clifton W. Chadwick is guilty of contempt of this court and the the said Clifton W. Chadwick pay the sum of $500.00 to the plaintiffs Herbert Alleshouse and Roberta Alleshouse, and an additional sum of $500.00 to the plaintiffs Robert Ferris and Betty Ferris, and an additional sum of $500.00 to the plaintiffs Galon P. Noll and Beatrice J. Noll, and an additional sum of $150.00 to plaintiff's attorneys herein for preparation and trial of this suit, and it is further ordered that the defendant Clifton W. Chadwick be committed by the Sheriff of Steuben County to the county jail until such sums are paid or replevied.

IT IS FURTHER ORDERED BY THE COURT that the defendant James W. Birchfield is guilty of contempt of this court and that the said James W. Birchfield pay the sume of $500.00 to the plaintiffs Herbert Alleshouse and Roberta Alleshouse, and an additional sum of $500.00 to the plaintiffs Robert Ferris and Betty Ferris, and an additional sum of $500.00 to the plaintiffs Galon P. Noll and Beatrice J. Noll, and an additional sum of $150.00 to plaintiffs' attorneys herein for preparation and trial of this suit, and it is further ordered that the defendant James W. Birchfield be committed by the Sheriff of Steuben County, Indiana, to the county jail until such sums are paid or replevied.'

A Motion for New Trial was filed and overruled; this appeal results.

The Assignment of Errors, seasonably filed in this Court, asserts that the trial court erred in overruling the Appellants' Motion for a New Trial.

In their argument, Appellants advance three contentions of error based upon overruling of their Motion for a New Trial. We shall attempt to discuss the merits of their contentions in the order of presentation.

Appellant first assert that 'absent any proof of any legally compensable injury, it was error for the court to award damages to the appellees', attempting to apply said assertion to all four of the specifications for new trial: (1) the decision * * * is not sustained by sufficient evidence; (2) the decision * * * is contrary to law; (3) the damages assessed * * * are excessive; and (4) error in the assessment of the amount of recovery, in this, the amount is too large.

Appellants contend that the proceeding, being for indirect civil contempt, the damages to be assessed, if any, must be of a compensatory and not of a punitive nature; that compensatory damages must be proved; and that the testimony presented as to the difference in value of the property of Appellees, if the races were to continue, and not the diminuation of values before and after one race. The further contend that where a nuisance is abatable, as here, the damages assessed must be limited to the rental value of the properties. To sustain the various contentions next above set forth, Appellants cite the following authorities: Ex parte Fennig (Ex parte Whipple) (1939) 216 Ind. 298, 23 N.E.2d 678; Brown v. Brown (1933) 205 Ind. 664, 187 N.E. 836; Denny v. State (1932) 203 Ind. 682, 698, 182 N.E. 313; Moore v. Polk Sanitary Milk Co. (1936) 209 Ind. 558, 200 N.E. 228; N.Y., C. & St. L.R.R. Co. v. Meek (1936) 210 Ind. 322, 1 N.E.2d 611; In re Savage (Universal Credit Co. v. Talcott) (1938) 213 Ind. 228, 234, 12 N.E.2d 141; Indiana Pipe Line Co. v. Christensen (1919) 188 Ind. 400, 123 N.E. 789; Chicago, etc., R. Co. v. Myers (1914) 57 Ind.App. 458, 105 N.E. 645; Board of Com'rs of Greece County v. Usrey (1943) 221 Ind. 197, 46 N.E.2d 823; Pittsburgh, etc., R. Co. v. Lamm (1916) 61 Ind.App. 389, 112 N.E. 45; Perry etc., Stone Co. v. Smith (1908) 42 Ind.App. 413, 85 N.E. 784.

The authorities cited next above may be said generally to establish that this proceeding is one of indirect civil contempt; that the parties are properly named; that the damages to be assessed shall be compensatory of damages, if any, to appellees; and that the burden of proof rests upon Appellees.

The nuisance matter was settled in the action which resulted in the issuance of a permanent injunction; hence, the present proceeding was not designed to abate a nuisance. On the other hand, the action or proceeding was to 'enforce its order (injunction) 'by attachment or otherwise, according to the exigency of the case' * * * which is properly not a power to punish, but one to coerce by imprisonment or to impose money penalties for the benefit of the injured party or to 'take all necessary measures to secure and indemnify the plaintiff against damages in the premises". Denny v. State, supra. In that case, this Court further said in 203 Ind. at p. 706, 182 N.E. at p. 321:

'* * * we think it advisable to state definitely our conclusions, insofar as required by this appeal, respecting the rules applicable to criminal and civil contempts arising out of disobedience of orders of injunction. Our conclusions are as follows:

(1) That the facts in an information charging a criminal contempt of court, must be verified by the oath of the informant and upon his personal responsibility.

(2) That the information for a criminal contempt should be entitled 'State of Indiana vs. the defendant's and filed as an independent action and prosecuted by the state.

(3) That a proceeding for a civil contempt should be filed in the civil case out of which it arises; that the pleading upon which the proceeding rests may be merely a motion or petition by the complainant.

(4) That such pleading must be sworn to by the complainant on his personal knowledge or supported by the affidavit of someone who has personal knowledge of the facts set out in the pleading.

(5) That to constitute a criminal contempt the acts of disobedience must be characterized by a deliberate intention to defy the authority of the court, while an actual intent to do an act which violates the terms of a court order is sufficient to constitute a civil contempt.

(6) That in a civil contempt proceeding the only proper object is the enforcement or protection of the rights of the complainant and only coercive or remedial measures can be employed by the court; that imprisonment for a term or a fine not for the benefit of the complainant must be considered punitive and properly imposed only in a criminal contempt proceeding.

(7) That even though a single act of disobedience of an order of injunction may constitute both a criminal and civil contempt a proceeding in contempt for enforcement of civil rights and remedies is legally as independent of a criminal proceedings as a civil action for assault and battery is independent of a criminal prosecution based upon the same facts.

(8) That the intent of the alleged contemnor distinguishes a criminal contempt from a mere violation of an order of injunction; and, consequently, criminal and civil contempts cannot be distinguished by the test of whether the conduct of the defendant consists in refusing to do an act required by the order of the court or in doing an act prohibited by the order of the court, since one may as flagrantly defy the authority of a court by refusing to do an act enjoined, as by doing an act forbidden by an order of the court.

(9) That in a criminal contempt proceedings the defendant's is entitled to a discharge upon his verified answer, if the answer, considered with the information, is...