Costilla Land & Inv. Co. v. Allen

• Decision Date: 22 August 1910
• Citation: 110 P. 847,15 N.M. 528
• Court: New Mexico Supreme Court
• Parties: COSTILLA LAND & INVESTMENT CO.v.ALLEN et al.

15 N.M. 528

110 P. 847

COSTILLA LAND & INVESTMENT CO.

v.ALLEN et al.

Supreme Court of the Territory of New Mexico.

Aug. 22, 1910.

Syllabus by the Court.

Proceedings to punish for contempt are deemed criminal in their nature, when the purpose is primarily punishment.

Where the purpose of such proceedings is primarily compensatory or by way of reimbursement to the opposite party of expenses growing out of the alleged contempt, the proceeding is deemed civil.

While the border line between the two classes of proceedings is often indistinct, the questions of whether the offender is a party to the suit, whether the proceedings are before final decree and whether the fine goes to the public or a party to the litigation, are often determinative considerations.

No appeal lies in this territory from a judgment for what is classed as a criminal contempt. Marinan v. Baker, 12 N. M. 451, 78 Pac. 531, followed.

An order imposing a fine, payable by way of reimbursement to the opposite party, for violation of a preliminary injunction, is an interlocutory order in a civil proceeding, and review of such an order can be entertained only after final decree, and in connection with an appeal therefrom.

Appeal from District Court, Taos County; before Justice John R. McFie.

Action by the Costilla Land & Investment Company against Robert Allen and others. Judgment for plaintiff, and defendants appeal. On motion to dismiss. Motion granted.

An order imposing a fine payable by way of reimbursement to the opposite party for violation of a preliminary injunction is an interlocutory order in a civil proceeding, and can be reviewed only after final decree and in connection with an appeal therefrom.

The Costilla Land & Investment Company, a corporation, filed their complaint against Allen and others, alleging ownership in the south half of what is known as the Sangre de Cristo grant, and further alleging that the defendants “have wrongfully and unlawfully slandered the title of your plaintiff, and have by false rumors alleged that said plaintiff has no title to said land, and is without title to said portions thereof, and has wrongfully and unlawfully claimed that the boundaries thereof are not where they properly belong by the grants and patent of same, and wrongfully and unlawfully contend that each part and portion of the land of plaintiff is the land of the United States and the said defendants, and the defendants threaten to take possession or certain portions of the land, water, pasture, woods, and right of plaintiff situate within the boundary and description of said grant, *** and are trying to induce others to take possession of said lands, and are threatening to pasture large herds of sheep and other stock upon said tract, and are threatening to hold and retain other large tracts of land belonging to this plaintiff, and to induce others to do the same, and are threatening to fence large tracts of said land owned by said plaintiff, and are now threatening to exclude this plaintiff, its agents, servants, and tenants, and are threatening to prevent its agent and tenants from entering said land and from pasturing their sheep on plaintiff's said land, to the great and irreparable damage to this plaintiff in the sum of $10,000.” The complaint prays damages, a decree quieting title, and an injunction against the acts and pretensions of the defendants as above outlined.

The court ordered a preliminary injunction as prayed upon the giving of bond. This latter was done, and the defendants answered to the merits of the action, which, however, as yet remains untried. Subsequent to the filing of the answer the plaintiff filed a motion supported by affidavits alleging that the defendants had violated the terms of the injunction, and praying that they be ordered to show cause why they should not be punished for contempt. The rule issued and upon hearing and after the taking of much testimony eight of the defendants were adjudged in contempt “in having willfully disobeyed the injunction which issued out of this court in the above-entitled action on, to wit, the 26th day of July, A. D. 1906, in that they, and each of them, have continued to trespass upon the lands in controversy in the above-entitled cause by enlarging their possessions thereon, constructing additional fences and buildings upon said lands, and have committed waste on said lands by cutting hay therefrom and selling the same for profit, and have slandered the title of the above named plaintiff to said lands.” The court fined each of said defendants $25, together with costs to be paid to the clerk of this court for the use of the above-named plaintiff, and that each of said defendants “be committed by the sheriff of the county of Taos, territory of New Mexico, to the county jail of said county, to be there detained in close custody until he pays said sum or be discharged according to law.” The defendants prayed and were allowed an appeal from this decision. The case is now before us on motion to dismiss the appeal.

A. C. Voorhees, for appellants. Abbott & Abbott (Brooks & Smith and Charles J. Hughes, on the brief), for appellee.

POPE, C. J. (after stating the facts as above).

The motion to dismiss the appeal proceeds upon the ground that the action of the court in fining the defendants for contempt is not appealable. It is argued that, if the contempt proceedings be deemed criminal and punitive in their nature, no appeal lies, since it was held by this court in Marinan v. Baker, 12 N. M. 451, 78 Pac. 531, that under Comp. Laws 1897, § 3406, there is no right of appeal in a criminal case except “from a final judgment rendered upon an indictment,” and, on the other hand, if a civil and remedial proceeding that the decision rendered was interlocutory and not final, and thus not appealable, under Jung v. Myer, 11 N. M. 379, 68 Pac. 933, which declares that under the organic act appeals are permitted only from final decisions. These contentions involve a determination by us of whether the proceeding is criminal or civil, for, if the former, the appeal is clearly not maintainable under Marinan v. Baker, supra. Before proceeding to the consideration of the main question, there is to be dealt with the contention of appellant that Marinan v. Baker is not in point because our statutes regulating appeals have been changed since that decision. We find no basis for this claim, however. Chapter 57, Laws 1907, entitled “An act providing appellate procedure in civil and criminal cases,” by its section 47 simply re-enacts, but does not in the slightest change, Comp. Laws 1897, § 3406, supra, which was the controlling statute in Marinan v. Baker, and which, as we have seen, limits appeals in criminal cases to final judgments rendered upon indictments. Neither does section 1 of the act of 1907 upon which appellant specially relies as changing the statutes have that effect, since it is an exact copy of section 161 of the Civil Code, in force when the Marinan Case was decided, and for the further reason that it applies only to civil cases as witness the following language: “Any person aggrieved by any final judgment or decision of any district court in any civil case may, at his election take an appeal or sue out a writ of error,” etc. Deeming Marinan v. Baker controlling authority, if the decision complained of be for a criminal contempt, we proceed to determine whether such was criminal or civil, and, if the latter, whether the action of the trial court was interlocutory or final.

The border line between what may be termed civil and what criminal contempt is, as has been pointed out by many authorities, exceedingly indistinct and narrow, leaving it often a question of extreme refinement as to whether the act was one or the other. Of course, all judgments for contempt are in a sense punitive since the sentence imposed, even if simply to preserve private rights, and even if the so-called fines go to the litigant purely by way of reimbursement has the effect to punish the recalcitrant and to declare the purpose of the court that its orders shall not be trifled with. The authorities, however, draw a distinction between those contempts where the protection of the court and a vindication of its dignity are the main objects of the proceeding and those where a more effective remedy to private litigants is after all the purpose of what is done. Thus in Re Nevitt, 117 Fed. 448, 458, 54 C. C. A. 622, quoted with approval in Bessette v. Conkey Co., 194 U. S. 328, 24 Sup. Ct. 666 (48 L. Ed. 997), it is said: “Proceedings for contempt are of two classes-those prosecuted to preserve the power and vindicate the dignity of the courts, and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce.” So in State v. Bland, 189 Mo. 197, 206, 88 S. W. 28, 30, it is said: “Contempts have been divided into civil and criminal, into direct and constructive, into contempts which affect alone the dignity of the court and those which affect the beneficial rights of a party litigant, and there is a class of contempts in which both elements appear.” And, referring to the difficulty of distinguishing between civil and criminal contempts, the Missouri court in the same case says: “An examination of the authorities will show that the line of demarcation between the different classes of contempts is often shadowy and does not...