Elliot v. Whitmore
| Decision Date | 19 June 1894 |
| Docket Number | 412 |
| Court | Utah Supreme Court |
| Parties | LEWIS A. SCOTT ELLIOT, RESPONDENT, v. GEORGE C. WHITMORE AND ANOTHER, APPELLANTS. [1] |
APPEAL from the District Court of the Third Judicial District, Hon George W. Bartch, Judge.
Application by Lewis A. Scott Elliot for the arrest of George C. Whitmore for contempt of court for violating the decree and injunctional order by destroying a measuring box put in a ditch for the purpose of distributing water, and for diverting the water of the stream in excess of the amount awarded him by the decree. Defendant was found guilty. From the order denying a new trial, he appeals.
Affirmed.
Messrs Brown & Henderson and Mr. E. D. Hoge, for appellant.
Cited People v. Simonson, 10 Mich. 335; Ex parte Cohen, 6 Cal. 318.
Messrs Zane & Putnam and Mr. C. S. Varian, for respondent.
The court has made its order adjudging the defendant guilty of three several acts of contempt. Two in tearing out the box and a third continuous contempt of violating the injunctional order contained in the decree, prohibiting him from taking more than 67-150 of a cubic foot per second. The only questions that can be considered on an appeal of this character, if the order is appealable, are whether the acts specified in the adjudication of contempts were contempts, and whether the court has power to punish them. In re Prior, 18 Kas. 72, 26 Am. Rep. 747; Tolman v. Jones, 114 Ill. 147; Patton v. Harris, 15 B. Mon. 607; People v. Sturdevant, 9 N.Y. 263, 59 Am. Dec. 536; Howard v. Duran, 36 Ga. 846, 91 Am. Dec. 767; Haines v. Haines, 35 Mich. 138; Dewey v. Superior Court, 81 Cal. 64. The act which the defendant has committed is a wilful defiance of the authority of the court. The distinction between civil and criminal contempts is the difference between the refusal to perform a mandatory injunction and the doing of an act injurious to the authority of the court or to the other party. In the former case conviction is appealable; in the latter case it is not. Phillips v. Welch, 11 Nev. 187.
A decree was entered in the Third District Court on the 9th of May, 1893, distributing and dividing the water of Grassy Trail creek between the plaintiff and defendants. By said decree, one W. P. Hardesty was appointed a commissioner of said court to construct a measuring box upon defendants' ditch at some convenient place near the defendants' head gate, so as to definitely measure out the water to each party. The defendants were perpetually restrained and enjoined from taking from said stream more water than was allowed them by said decree, and were also perpetually restrained and enjoined from in any way altering or changing the flow of water from said measuring box, and from in any manner changing or altering said measuring box, or the measurements thereof. In defiance of this decree and injunctional order, with full knowledge and in direct violation thereof, the defendant George C. Whitmore, on the 11th and 15th days of June, 1893, wilfully, unlawfully, and maliciously tore out both ends of said measuring box, which was located on unsurveyed public lands of the United States, so that it would not measure the water, and diverted and took from said stream water in greater quantity than was allowed by said decree. For this alleged violation of the injunction, the plaintiff presented a complaint, on oath, to the Third District Court, and obtained a warrant in attachment in the name of the people of the territory directing the arrest of the defendant, and ordering him to show cause why he should not be punished for contempt of the decree of the court, etc. The defendant filed his answer, and a hearing was had before the court, and thereupon the court found, among other things, that the defendant was guilty of the acts complained of, which acts were contempts of the authority of the court. The court thereupon ordered and adjudged that said George C. Whitmore be confined and imprisoned until he cease diverting from the waters of said stream any quantity larger than 67-150 of a cubic foot of water per second, and until he restore the said measuring box to the same condition in which it was immediately before the doing of the acts of contempt mentioned above, on the 11th day of June, 1893; and that said George C. Whitmore be remanded to the custody of the United States marshal, to be by him imprisoned and confined until the further order of this court. From this order Whitmore appealed to this court, assigning many errors, and no supersedeas bond was given.
The first error assigned is that the court had no jurisdiction to render the decree, to make the order above referred to, or to punish for contempt, because the said cause was first pending in the First District Court (the district where the water was located), and that said court, upon its own motion, transferred said cause to the Third District Court, without any authority therefor. The order of the First District Court reads as follows: "In this case, the court, on its own motion, ordered that this case be transferred to the Third District Court, at Salt Lake City, for further proceedings." After this order was made, the case was transferred to the Third District Court, that being the nearest district court. After this, and on the 13th day of February, 1893, and after said cause was transferred in accordance with said order to the Third District Court, the attorneys for the respective parties appeared in the Third District Court; and on motion of the attorneys for both parties, and by consent and at the request of all, the court ordered that the cause be referred to J. H. Harris, as sole referee, to try all the issues in said cause, and report findings of fact and conclusions of law. In pursuance of said order and stipulation, the parties appeared before said referee, who, without objection, took the testimony offered by the respective parties; a decree was entered upon such testimony, and report so taken and filed.
A motion for a new trial was subsequently made by the appellant Whitmore, and at no time was any objection made to the jurisdiction of the court, or to any of said proceedings growing out of said order changing the place of trial. The objection is made for the first time in this court. Our statute (section 3199, 2 Comp. Laws 1888) authorizes the court to change the place of trial upon its own motion if the parties do not agree, but in that case the cause must be transferred to the nearest court. This question was fully covered and decided in the case of Ex parte Whitmore, 9 Utah 441, 35 P. 524. This court held in that case, and under the same state of facts and upon the same order, that ...
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