Denny v. State ex inf. Brady
| Decision Date | 29 July 1932 |
| Docket Number | 25,239 |
| Citation | 182 N.E. 313,203 Ind. 682 |
| Parties | Denny et al. v. State ex inf. Brady |
| Court | Indiana Supreme Court |
1. CONTEMPT---Preliminary Affidavit of Information---Formal Requisites---Affidavit On Information and Belief Based on Reports of Others---Not Sufficient to Charge Either Civil or Criminal Contempt in Violation of Injunction.---An information, charging acts in violation of injunction reciting that affidavit was made on information and belief based on reports of others is not sufficient to charge contempt, either civil or criminal, because not properly verified. p. 687.
2. CONTEMPT---Extent of Authority---Statute.---Sections 1237 and 1385, Burns 1926, referred only to criminal contempts and were repealed by the act of 1879 covering the entire subject of criminal contempt. (1976 et seq., Burns 1926.) p. 689.
3. INJUNCTION---Enforcement by Contempt---Statute construed.---Section 191, ch. 38, Acts 1881 (1238 Burns 1926), providing for the enforcement of injunctions by contempt proceedings, is a re-enactment of Section 150 of the Civil Code of 1852, and must be construed in the light of the general contempt Act of 1879 (Sections 1976 et seq., Burns 1926), and, hence, the statement therein that the party charged is "to be dealt with as in other cases of contempt" must be understood to mean other cases of criminal contempt provided for in the Act of 1879. p. 693.
4. INJUNCTION---Willful Disobedience---Enforcement by Contempt.---A defendant in an injunction suit who willfully disobeys the injunction order may be cited for contempt as provided for in the statute respecting indirect contempt (1084 Burns 1926), or he may be proceeded against as for civil contempt. (1238, 1239, Burns 1926.) p. 694.
5. CONTEMPT---Rule To Show Cause---Prerequisite to Attachment.---Neither under the contempt act , nor under the Injunction Act as modified by the contempt act, can the court issue an attachment without having first issued a rule to show cause. p. 695.
6. CONTEMPT---Criminal Contempt---Civil Contempt---Procedure.---In a proceeding for criminal contempt, the defendant can be required to show cause why he should not be attached and punished for contempt, but, if the proceeding is for civil contempt for disobedience of an injunction, the defendant should not be attached and punished, but rather should be required to answer the charge of having violated the injunction, the relief being that the court "take all necessary measures to secure and indemnify the plaintiff against damages in the premises." p. 695.
7. CONTEMPT---Civil Contempt.---Civil contempt is a violation of an order or decree of a court made for the benefit of the opposing party, and is not an offense so much against the dignity of the court as against the party. p. 695.
8. CONTEMPT---Pleadings---Reply.---Filing of a reply in contempt proceedings is proper only in a civil contempt case. p. 697.
9. CONTEMPT---Criminal Contempt---Pleading.---The only pleadings provided for in a criminal contempt case are the charge and the defendant's answer thereto. p. 697.
10. CONTEMPT---Criminal Contempt---Power of Court.---In a criminal contempt proceeding, if the defendant's answer under oath contains sufficient facts to fully purge the contempt, he shall be discharged, or, if the answer does not purge the contempt, the Court should assess the punishment. pp. 697, 707.
11. CONTEMPT---Punishment---Limited to Criminal Contempt.---The punishment authorized by the act of 1879 (1081 Burns 1926) is limited to cases of criminal contempt. p. 698.
12. CONTEMPT---Civil Contempt---Punishment.---There is no statutory authority for the infliction of a punishment of either imprisonment or a fine in cases of civil contempt hence imprisonment would be limited to the sole purpose of coercing the contempt defendant to discharge his obligation and the fine imposed should be for the benefit of plaintiff to repair damage already done by his disobedience. p. 698.
13. CONTEMPT---Willful Disobedience of Court Order---May Constitute Both Criminal And Civil Contempt.---If the act of disobedience constituting a civil contempt is done willfully and involves a deliberate design to disobey the order as an act of defiance of, and interference with, the function of the court, such act would also constitute a criminal contempt. p. 704.
14. CONTEMPT---Criminal Contempt---Information.---An information charging criminal contempt must be verified by oath of the informant and on his personal responsibility. p. 706.
15. CONTEMPT---Criminal Contempt---Title of Action.---A proceeding for criminal contempt should be entitled "State of Indiana v. the defendant," filed as an independent action, and prosecuted by the state. p. 706.
16. CONTEMPT---Civil Contempt---Pleading.---The pleading in a civil contempt proceeding may be merely a motion or petition by the complainant and should be filed in the civil case out of which it arises. p. 706.
17. CONTEMPT---Civil Contempt---Pleading---Must Be Verified.---The information on which a civil contempt proceeding rests must be verified by complainant on his personal knowledge, or supported by affidavit of some one having personal knowledge of the facts. p. 706.
18. CONTEMPT---Criminal or Civil---Intent.---Acts constituting a criminal contempt 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. p. 707.
19. CONTEMPT---Civil Contempt---Purpose.---The only proper object in a civil contempt proceeding is to enforce or protect the rights of the complainant, and, therefore, only coercive or remedial measures can be employed by the court. p. 707.
20. CONTEMPT---Punitive Punishment---Proper Only in Criminal Contempt.---Punitive punishment may be properly imposed only in criminal contempt proceedings. p. 707.
21. CONTEMPT---Criminal and Civil Contempt---Distinct Proceedings.---Even though the same act may constitute both criminal and civil contempt, the proceedings as well as the rights and remedies of the parties are clearly distinct from each other. p. 707.
22. CONTEMPT---Criminal and Civil Contempt---Distinction---Intent.---The intent of the alleged contemnor distinguishes a criminal contempt from a mere violation of a court order of injunction, and 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 court order, or in doing an act prohibited by court order, since one may defy the order of the court with equal flagrance in either case. p. 707.
23. CONTEMPT---Civil Contempt---Answer---Evidence.---In a civil contempt proceeding the answer need not be verified and both parties are entitled to introduce evidence. p. 707.
From Henry Circuit Court; Will M. Sparks, Special Judge.
Proceedings by the State of Indiana against Sumner B. Denny and Harold O. Denny charging defendants with contempt of court by reason of violating an injunction order. From a judgment against them, defendants appealed.
Reversed.
Walterhouse & Miller and Richard L. Ewbank, for appellants.
Arthur L. Gilliom, Attorney-General; J. A. VanOsdol, and Warner & Warner, for appellees.
Myers, J., absent.
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 (§§ 1237-38 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 because 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 $ 250.00 and Harold O. Denny $ 50.00, from which judgment an appeal was prayed and bond filed. Appellants thereafter filed their several motions for a new trial upon the following specified causes:
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