Davis v. Overman

• Decision Date: 19 April 1916
• Docket Number: 22,417
• Citation: Davis v. Overman, 184 Ind. 647, 112 N.E. 243 (Ind. 1916)
• Parties: Davis et al. v. Overman et al
• Court: Indiana Supreme Court

112 N.E. 243

184 Ind. 647

Davis et al. v. Overman et al

No. 22,417

Supreme Court of Indiana

April 19, 1916

From Marion Circuit Court (21,205); Charles Remster, Judge.

Proceedings on the affidavit of Frank L. Overman and others charging constructive contempt against William E. Davis and others. From a judgment that they were guilty of contempt, the latter appeal.

Reversed.

Joseph B. Kealing, Merle N. A. Walker and Newton J. McGuire, for appellants.

M. M Bachelder, for appellees.

OPINION

Morris, C. J.

Appellants Davis, Sisloff and Resoner were members of the board of public safety of Indianapolis, and appellant Shank was market master of east market, in said city. Appellees, Overman Gibson, Cook, Merklin and Fisher occupied separate stalls in said market and instituted a suit, in the Marion Circuit Court, to enjoin appellants from ejecting appellees from their respective stalls, in cause No. 21,205, entitled Frank L. Overman et al. v. City of Indianapolis et al. On a hearing of the cause on November 23, 1912 there was a finding for the plaintiffs and decree against appellants which provided that they "be, and the same are hereby enjoined from ejecting the plaintiffs, or any of them from the respective stalls and stands occupied by said respective plaintiffs in the East Market in the City of Indianapolis, said stalls and stands being occupied by said plaintiffs, respectively, as follows, to wit: * * * for and during the time until June 1, 1913, and during said time said named defendants be and hereby are enjoined from requiring said plaintiffs, or any of them, to install or place upon their said respective stands or stalls a glass show case and refrigerator box furnished by or proposed to be furnished by any person, firm or corporation, or any particular or uniform glass show case, or any uniform refrigerator box of the size and dimensions conforming to any particular specifications, or any specifications adopted by said board of public safety of the City of Indianapolis; and from preventing the plaintiffs from installing and placing upon their said respective stalls or stands a refrigerator box, or glass covered stand with ice box attachment so constructed as to be suitable for holding ice, and so constructed that articles of food kept therein shall be fully protected from all flies, dust, dirt and all other impurities, and from handling by patrons of the market, or prospective purchasers, within 40 days from this date, and in the event said plaintiffs, or any of them fail to install and place upon his said stalls or stands a refrigerator, ice box, or glass covered stand with ice box attachment, so constructed as to be suitable for holding ice, and so constructed that articles of food kept therein shall be fully protected from all flies, dust, dirt and other impurities, and from handling by patrons of the market or prospective purchasers, within 40 days from this date, then, in such case and event said named defendants may eject said plaintiffs, or any of them from said stalls or stands, provided, that nothing in this order and decree shall operate to prevent, nor shall this order and judgment be construed to prevent said Board of Public Safety of the City of Indianapolis from ejecting any plaintiff from his said stalls or stands for any violation of any ordinance of the City of Indianapolis, in conformity with the provisions of any ordinance of said city, save and except as herein provided. This order and decree shall not operate or be construed to operate to prevent said defendants from exercising any legal right or power vested in said defendants by the ordinances of the City of Indianapolis, or the laws of the State of Indiana, save and except as in this decree provided and set out."

On January 3, 1913, appellees filed in said court, under the title in the injunction suit, their affidavit alleging that appellants "wilfully violated the injunction heretofore issued in said cause, in the following manner to wit: that the said defendants have on this 3rd day of January, 1913 caused to be ejected from their respective stalls, herein numbered, the respective plaintiffs and these affiants." Following this is an allegation of injury and damage to appellees' fixtures and wares in their stalls, succeeded by a prayer for relief, in this language: "And now come...