Crites v. State

• Citation: 105 N.W. 469,74 Neb. 687
• Parties: CRITES v. STATE.
• Decision Date: 19 October 1905
• Court: Supreme Court of Nebraska

74 Neb. 687

105 N.W. 469

CRITES

v.STATE.

Supreme Court of Nebraska.

Oct. 19, 1905.

Syllabus by the Court.

A judgment in a summary proceeding for contempt in facie curiæ, where no complaint is filed, no evidence is taken, and no trial had, may be reviewed on the record made therein without the filing of a motion for a new trial.

Presumptions and intendments will not be indulged in, in order to sustain convictions for contempt of court. Hawes v. State, 64 N. W. 699, 46 Neb. 149.

The record in such a case must show forth the facts constituting the offense. A mere recital that the defendant is guilty of contemptuous and insolent behavior towards the court, and is in contempt of court, where the record of the proceedings does not warrant such recital, is a mere conclusion, and is insufficient to show that the offense was in fact committed.

Error to District Court, Dawes County; Harrington, Judge.

Albert W. Crites was adjudged guilty of contempt, and brings error. Reversed.Albert W. Crites, in pro. per.

Norris Brown, Atty. Gen., and W. T. Thompson, Deputy Atty. Gen., for the State.

BARNES, J.

The plaintiff in error, Albert W. Crites, while engaged as counsel for the defendants in the trial of a civil action in the district court of Dawes county, was summarily and without trial adjudged to be guilty of a contempt of court, alleged to have been committed in the presence of the presiding judge, and he was thereupon sentenced to pay a fine of $10 and costs, and to stand committed until said fine and costs were paid. A stay of proceedings was denied him, and his request to be permitted to make a showing and a defense in said proceeding was refused, and he was thereupon committed to, and confined in, the common jail of the county until he obtained an order from this court suspending the execution of his said sentence. By a petition in error he now asks for a reversal of the judgment thus pronounced against him.

The state contends, at the outset of this controversy, that we cannot consider the errors assigned by the plaintiff, because no motion for a new trial was filed in the court below. To support this contention the Attorney General cites Zimmerman v. State, 46 Neb. 13, 64 N. W. 375. An examination of that case discloses that Zimmerman was tried and found guilty of a constructive contempt of court for the violation of an injunction order in a civil case. It appears that a complaint was filed therein, that witnesses were examined on the hearing and a regular trial was had, that on error to this court it was held that the questions arising on the trial were the only ones that must be included in a motion for a new trial. It was said in the opinion: “There was no motion for a new trial in this case, hence we cannot review any of the errors which are alleged to have been committed during the trial.” The contempt in that case was committed outside of the presence of the court, and was investigated as any other complaint, where witnesses are examined and a regular trial had. It was said that in such a case a motion for a new trial must be filed, directing the attention of the district court to the errors claimed to have been committed during the trial, but it is fairly inferable from the whole opinion that no motion for a new trial would be necessary to raise the questions presented by the record in a case where no trial was ever had. It appears in the case at bar that the plaintiff was never tried for the alleged contempt, that no evidence was taken, and he was accorded no defense or explanation, and that judgment was thus summarily pronounced against him; and it would seem absurd to hold that a motion for a new trial must have been filed when there was no trial in the first instance. Again, we have held that no motion for a new trial is necessary in order to review the decision of the district court upon an application for a liquor license, and the case at bar is one quite similar in principle. So we have no hesitancy in holding that the questions presented by the record, in a case like this, may be reviewed without a motion for a new trial.

We come now to consider the plaintiff's contentions. It appears that during the trial of a civil action in the district court of Dawes county, in which one Horace Brockway was plaintiff and Benjamin F. Pitman et al. were defendants, and in which Brockway sought to recover a certain sum of money from defendants therein on account of the alleged wrongful conversion of the proceeds of a check, which it was claimed was left with some of the defendants in escrow, and in which the defendant Pitman, among other things, alleged as his defense that he had sold and conveyed his interest in a certain tract of land situated in Dawes county for the amount of the check in...