Ex parte Crenshaw

• Decision Date: 31 October 1883
• Citation: 80 Mo. 447
• Parties: EX PARTE CRENSHAW.
• Court: Missouri Supreme Court

80 Mo. 447

EX PARTE CRENSHAW.

Supreme Court of Missouri.

October Term, 1883.

Habeas Corpus.

WRIT DENIED.

L. C. Slavens for petitioner.

This was a proceeding for criminal contempt, based on Revised Statutes, sections 1055, 1056, and the court exceeded the limit of punishment in imposing a fine of $500. Phillips v. Welch, 11 Nev. 187; Howard v. Durand, 36 Ga. 346. The court exceeded its jurisdiction in committing petitioner until he paid $150 costs and expenses to the plaintiff; this was imprisonment for debt. 39 Mo. 286; 18 Mo. 484. The court having exceeded its jurisdiction, the statute authorizes the prisoner's discharge. R. S., §§ 2688, 2650.

Wash Adams also for petitioner.

The court exceeded its jurisdiction both as to the matter and sum, and the petitioner is entitled to be discharged under R. S., § 2650; Cons., art. 2, § 16; R. S., §§ 4041, 3118. The proceeding was for a criminal contempt founded on Revised Statutes, section 1055, and the punishment was for what petitioner had already done. 36 Ga. 358; 59 Cal. 408; 11 Nev. 187. The imprisonment of petitioner for the non-payment of the $150 to plaintiff Holmes, was imprisonment for debt. 39 Mo. 286; 18 Mo. 484; 65 N. C. 518, 637; 51. Vt. 630; 14 Abb. Pr. Rep. 188; 6 Iowa 245; 44 Wis. 411; 11 Nev. 187; 59 Cal. 408; 35 Mich. 138; 7 Hill 301; 3 Lans. 413. The judgment cannot be valid in so far as it imprisoned petitioner for failue to restore the property, if invalid as to the $500 and the $150 to be paid to Holmes. Ex parte Lange, 18 Wall. 176; Rex v. Collyer, Sayer's Rep. 44; 1 Dallas 135; 49 Mo. 291; 7 Mo. App. 368; 6 Mo. App. 474; 60 N. Y. 559; 43 Mo. 502; In re Henry, 1 D. & L. 846; Shank's case, 15 Abb. Pr. (N. S.) 38; Ex parte Bemert,7 Pac. C. L. J. 460.

Gage, Ladd & Small, contra.

The constitutional provisions relating to imprisonment for debt, apply to only ex contractu debts, not to debts arising from the commission of a tort in the nature of fines. Blewett v. Smith, 74 Mo. 405. There is no statute in this State limiting the common law discretion of a court of equity to punish parties for a violation of its lawful orders. R. S., §§ 1059, 2716; 2 High on Inj., § 1454, and note; Rogers, etc., v. Rogers, 38 Conn. 121; Williams v. Lampkins, 53 Ga. 200; Theweatt v. Gammell, 56 Ga. 98; Byne v. Byne, 54 Ga. 257; Doubleday v. Sherman, 8 Blatch. 94. The contempt being plainly charged in the commitment, the prisoner must be remanded. R. S., §§ 2648, 2651; Ex parte Goodin, 67 Mo. 637; Ex parte Toney, 11 Mo. 661; State v. Gower, 44 Mo. 181; In re Harris, 47 Mo. 164; Ex parte Kauffman, 73 Mo. 588; Bank v. Kerchevel, 65 Mo. 682. But even if all except one of the severable portions of the sentence were absolutely void, the prisoner should be remanded until he performed the valid part. People v. Baker, 89 N. Y. 461; People v. Jacobs, 66 N. Y. 8; Matter of Sweatman, 1 Cow. 144; Taff v. State, 39 Conn. 82; State v. James, 37 Conn. 355; Ex parte Lange, 18 Wall. 163; Houck v. Cross, 67 Mo. 152; Lenox v. Clarke, 52 Mo. 115. On appeal in criminal cases, judgments are not regarded as entireties. State v. Alexander, 56 Mo. 131; State v. Turner, 63 Mo. 436; State v. Kelso, 76 Mo. 505.

HENRY, J.

It appears from the petition and copy of the record accompanying it, that the petitioner is imprisoned in the common jail of Jackson county by virtue of a judgment rendered by the circuit court of Jackson county, in certain proceedings against him, as for contempt of court, as petitioner avers, in an alleged violation of an ex parte order of injunction issued by that court. One James T. Holmes obtained a judgment of restitution against petitioner in a suit for unlawful detainer of the first floor of a builing in Kansas City, and certain fixtures therein. From that judgment petitioner appealed to the circuit court of Jackson county, and Holmes filed his petition for an injunction to restrain petitioner from removing any of said fixtures, and the court made an ex parte order to that effect. After service of the order, petitioner removed some of the articles embraced in the order, and thereupon an information was duly filed against him, charging him with contempt of court, and subsequently a temporary injunction was granted of the same purport as the ex parte order.

Upon the information petitioner was tried by the court, which found that he had violated said restraining order, and he was ordered to restore the property removed by the next morning. On the next day the court found that he had not complied with the restoring order, and found him guilty of contempt in willfully violating said restraining order, and adjudged that he pay said Holmes all his costs and expenses incurred in said proceedings, which the court found to be $150; also a fine of $500; and that he restore the property mentioned in the order, and be committed to jail, there to be held by the keeper thereof until he shall have paid said sums of money and returned said property.

It is ably argued by counsel for petitioner that the proceeding against him was as for a criminal contempt under section 1055, Revised Statutes, which is as follows: “Every court of record shall have power to punish as for a criminal contempt, persons guilty of any of the following acts, and no others: 1st, Disorderly, contemptuous or insolent behavior committed during its sittings in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. 2nd, Any breach of the peace, noise or other disturbance directly tending to interrupt its proceedings. 3rd, Willful disobedience of any process or order lawfully issued or made by it. 4th, Resistance willfully offered by any person to the lawful order or process of the court. 5th, The contumacious and unlawful refusal of any person to be sworn as a witness, or when so sworn, the like refusal to answer any legal and proper interrogatories.”

Section 1056 provides that “Punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court, but the fine in no case shall exceed the sum of $50, nor the imprisonment ten days, and where any person shall be committed to prison for the non-paynent of any such fine, he shall be discharged at the expiration of thirty days.” Section 1059 declares that “Nothing contained in the preceding section shall be construed to extend to any proceedings against parties or officers as for contempt for the purpose of enforcing any civil right or remedy.”

The effect of this section is to leave the punishment for contempt in cases other than those embraced in section 1055, as at common law. The power to commit as for contempt any officer or party in a proceeding for the purpose of enforcing a civil right or remedy, relates only to such conduct as tends to defeat or impair the right or remedy of a party. It must be for a disobedience of some order or process made or issued, in order to preserve such right as the parties, or adverse party, may establish to the property in controversy. If not of this character, the conduct alleged to be in contempt of court must fall under one of the subdivisions of section 1055, or is not contempt at all.

The restraining order in this case was made for the purpose of preventing the removal of the property in litigation, to which both Holmes and the petitioner severally laid claim. Its object was to preserve the property, and keep it within the jurisdiction of the court, so that in the event that Holmes succeeded in the pending litigation, it could be reached by the process of the court. Its violation tended to defeat such right as Holmes might establish in the property and prevent the seizure of the same in his behalf by the sheriff, under such process as might be issued on the final determination of the case. Such orders are not adjudications upon the right of property, but are only made with reference to ultimate results, and virtually place the property in custodia legis until those ultimate results are reached. The proceeding against the petitioner, therefore, was not as for a criminal contempt, in the sense of section 1055. It was instituted by Holmes for himself, and not for the State. We have not overlooked the case of Howard v. Durand, 36 Ga. 346, in which the defendant was enjoined from selling or disposing of property in litigation, and violated the injunction, and in which the supreme court of that state said: “Suppose the court had committed the defendant for said contempt, would that afford any remedy to Howard? Would it restore the property sold? Do not the facts show that the only effect of the punishment would be to vindicate the authority of the court, and not to furnish any remedy for plaintiff.” There is this marked difference between that and this case, in that there the party in contempt had put it out of his power to restore the property, and his imprisonment could only have been, as the court observed, to vindicate the authority of the court. Here, however, it does not appear that the petitioner could not restore the removed property, and his imprisonment served the double purpose of vindicating the authority of the court and compelling a compliance with its order, which it might be assumed the petitioner has the power to do, as he has not alleged the contrary.

These two cases aptly mark the boundary line between the two classes of contempt recognized by our statutes. Where there has been such a violation of an order of court as puts it out of the power of the guilty party to comply with it, his punishment must be as for a criminal contempt, because it can be only punitive. But where what is enjoined can be done by the party, his disobedience subjects him to imprisonment, not as for contempt, but as a means of securing compliance with an order of court.

We have not overlooked the third subdivision of section 1055, which declares “a willful disobedience of any process or order...