Denny v. State ex Inf. Brady, 25239.

• Decision Date: 29 July 1932
• Docket Number: No. 25239.,25239.
• Citation: 182 N.E. 313,203 Ind. 682
• Parties: DENNY et al. v. STATE ex Inf. Brady.
• Court: Indiana Supreme Court

203 Ind. 682

182 N.E. 313

DENNY et al.

v.STATE ex Inf. Brady.

No. 25239.

Supreme Court of Indiana.

July 29, 1932.

Appeal from Henry Circuit Court; Will Sparks, Judge.

Suit for injunction by the Union Traction Company of Indiana against Sumner B. Denny and others, in which injunction was rendered enjoining defendants from running a jitney bus along certain streets. Subsequently a receiver was appointed for the Traction Company and he filed an information in the name of the State against the defendants charging them with violating the order of injunction, and, from a judgment against defendants, they appeal.

Reversed with directions.Walterhouse & Miller, of Muncie, and Richard L. Ewbank, of Indianapolis, for appellants.

Arthur L. Gilliom, Atty. Gen., J. A. Van Osdol, of Anderson, and Warner & Warner, of Muncie, for appellee.

TREANOR, J.

Judgment was rendered on November 25, 1925, in the Henry circuit court perpetually enjoining Sumner B. Denny and others, their agents, employees, etc., from “driving, running or operating any jitney bus upon or along that part of any street *** in the City of Muncie, Indiana, upon which there is located the street railway tracks of the Union Traction Company of Indiana, upon or over which street cars are regularly operated, but the defendants *** are not enjoined from crossing any such street. ***” On December 18, 1925, Arthur W. Brady, receiver for the Union Traction Company of Indiana, filed in the aforesaid cause in the Henry circuit court his sworn motion for attachment or citation against the appellants herein, charging them with “knowingly and willfully violating the order of injunction” on December 14, 1925, by the operation of jitney busses over streets with street car tracks in the city of Muncie, and moved that “an attachment for contempt against” the appellants “be awarded and issued by the court, or that the court make a rule against said defendants and other persons named to show why such attachment should not issue, pursuant to sections 1217 and 1218 of 1 Burns' Statutes, Revision of 1914 (sections 1237, 1238, Burns' Ann. Ind. St. 1926) and for such other orders and proceedings and the infliction of such penalties as are or may be necessary to compel observance of said judgment, and order of injunction.”

Each appellant filed a motion to discharge the rule against him of the deficiencies of the information, and also filed an answer for the purpose of purging himself of the alleged contempt. The nature of the other special answers will appear from the errors assigned in support of the motion for a new trial and the discussion which is to follow.

A trial was had and evidence heard, and the trial court made a finding that the defendant appellants were “guilty of contempt as charged.” The court thereupon rendered judgment, fining Sumner B. Denny $250 and Harold O. Denny $50, from which judgment an appeal was prayed and bond filed. Appellants thereafter filed their several motion for a new trial upon the following specified causes:

(1) The finding of the court is not sustained by sufficient evidence.

(2) The finding of the court is contrary to law.

(3) The fine assessed by the court is excessive.

(4) The court separately and severally erred in refusing to acquit the defendant Sumner B. Denny and Harold O. Denny and each of them separately and severally upon their answer.

(5) The court erred in permitting evidence to be introduced to contradict and deny the separate and several verified paragraph of answer of said Sumner B. Denny, denying each and every allegation in the petition and citation for contempt filed in the above-entitled cause.

(6) The court erred in permitting evidence to be introduced to contradict and deny the separate and several verified answer of Harold O. Denny, denying each and every allegation in the petition and citation for contempt filed in the above-entitled cause.

The court overruled the motion for new trial, appellants excepted and prosecute this appeal.

[1] We shall first consider appellants' proposition that the trial court erred in overruling the motion to discharge the rule against them, the ground for the motion being that the information charging the contempt was not properly verified.

The information sets out in detail various acts of the appellants which were alleged to be in violation of the injunction and consequently to constitute the alleged contempt of court; and, also, recites “that this affidavit is made on information and belief based on reports to affiant by his agents and employees of facts personally known to them.” The statute covering indirect contempt provides that “no such rule [citing for contempt], as hereinbefore provided for, shall ever issue until the facts alleged therein to constitute such contempt shall have been *** duly verified by the oath of [or] affirmation of some officer of the court or other responsible person.” Section 1083, Burns' Ann. Ind. St. 1926, Acts 1879, Sp. Sess., c. 35, pp. 112, 114, § 8. We think the foregoing requirement is not satisfied by a general verification by oath of an information which discloses that the affiant is relying entirely upon reports of third persons who have not sworn to the truth of the reports. Appellee, however, insists that the information was filed under section 1237, Burns', etc., 1926, supra (2 R. S. 1852, § 149, p. 61, Acts 1881 [Sp. Sess.], p. 240, § 190), which provides for the initiating of a contempt proceeding against one who has willfully disobeyed an order of injunction; the appellee assuming that a proceeding initiated under section 1237 is one for civil contempt and consequently does not require “the affidavit below to be on positive terms and on personal information.” The appellee also points out that in the case of civil contempt the defendant is allowed to introduce evidence and that the original affidavit is not used in evidence. We shall hereinafter point out that we think section 1237 does not control but even if it did control and, if this proceeding could be said to be one for civil contempt, we still should hold that the information should be verified by oath of the informant and set out facts personally known to the informant or else that the information should be supported by the affidavit of the person or persons who have personal knowledge of the facts. In the instant case the information, if it be said to allege a civil contempt, should have been supported by the affidavit of the agents or employees upon whose reports the receiver relied. We feel that one should not come into a court seeking the extraordinary and summary remedy even of civil contempt against an adversary party unless the informant or some supporting party has personal knowledge of the existence of facts which would justify the issuance of an attachment or a rule to show cause. We hold that the information was not sufficient to charge contempt, civil or criminal.

Whether the trial court was in error in refusing to discharge the defendants on the strength of their respective answers depends upon whether the proceeding was one in criminal or civil contempt. This is also true of the alleged error of the trial court in permitting the plaintiff to introduce evidence in support of the information. Appellee insists that the action below was governed by section 1237, supra, and that it was prosecuted for the purpose of enforcing appellee's civil rights under the injunction. For the following reasons we believe that section 149, Civil Code of 1852 (now section 1237) referred to criminal contempts and was repealed by the general contempt act of 1879:

[2] From 1852 to 1878 the only general legislative provision relating to the power of circuit courts to punish for contempt of court was section 13, c. 4 of the acts of 1852, 2 Rev. St. p. 7 (now appearing as section 1385, Burns', etc., 1926), and which reads as follows: “The said circuit courts, respectively, shall have full authority to administer all necessary oaths, and to punish, by fine and imprisonment, or either, all contempts of their authority and process in any matter before them, or by which the proceedings of the courts or the due course of justice is interrupted.”

We think the foregoing applied only to criminal contempts, that is, contempts which immediately interfered with the orderly functioning of the court. The General Assembly made no effort to regulate procedure in contempt cases until 1879; but through judicial decisions the practice in such cases had become quite definitely established. There had been some uncertainty as to whether the defendant's answer in indirect contempt cases should be the sole basis of the court's determination of the issues raised by the answer or whether the defendant might be interrogated and other evidence introduced. The latter rule had grown up in chancery, while the common-law courts had adhered to the rule that the defendant's answer under oath had to be taken as true and that the defendant was entitled to be discharged if his answer cleared him of the charges. If the answer contained false matter the defendant was liable to indictment for perjury. The act of 1879 adopted the practice as laid down in the cases of Wilson v. State (1877) 57 Ind. 71;Haskett v. State (1875) 51 Ind. 176;Burke v. State (1874) 47 Ind. 528; and State v. Earl (1872) 41 Ind. 464, which included the rule that in criminal contempt cases the answer of defendant was conclusive.

“We have examined the authorities, and are satisfied that in all cases of proceedings for alleged constructive contempts, except, perhaps, when they are to enforce a civil remedy, if the party charged fully answers all the charges against him, he shall be discharged, as to the attachment, and that the court cannot, after that, hear evidence to impeach or contradict him. 4 Bl. Com. 286; Saunders v. Melhuish, 6 Mod. 73; Thomas' Lessee v. Cummins, 1 Yeates [Pa.] 40; In the Matter of Moore, 63 N. C. 397;United States v. Dodge...