Ex parte Davis

• Citation: 112 F. 139
• Parties: Ex parte DAVIS.
• Decision Date: 06 December 1901
• Court: D. Florida

112 F. 139

Ex parte DAVIS.

United States Circuit Court, D. Florida.

December 6, 1901

A. J Murphy, for relator.

W. A Blount, for respondent.

The petition setting forth the commitment and detention of the relator charges that his detention is illegal on the following grounds:

(1) That the commitment under which your petitioner is held is illegal and void. (2) That the court was without jurisdiction or power to sentence your petitioner in the premises. (3) That the motion upon which the proceedings were had was not sworn to or verified. (4) That the said motion does not charge petitioner with contempt either directly or by implication. (5) Because by the said motion it appears that petitioner only did that which he was authorized to do as an attorney at law in behalf of his clients. (6) Because there is no allegation that the acts done by him as alleged in said motion were done wrongfully or with improper motives. (7) Because the commitment is irregular, in that it is not directed to the keeper of the county jail of Escambia county but only to the United States marshal for the Northern district of Florida. (8) Because the said commitment does not set forth such acts of petitioner as in law amount to contempt of court. (9) Because it appears therefrom that the said court has punished as a contempt an act of petitioner which in law is not contempt. (10) Because the facts set forth in said commitment do not constitute a contempt of court. (11) Because the acts of petitioner set forth and related in said commitment were legal and proper. (12) Because it is not alleged in said commitment that the acts of petitioner were contrary to right. (13) Because it does affirmatively appear that the acts set forth in said commitment, and that by the said court were held to be contempt, were done and performed by petitioner in the proper and just discharge of his duty as an attorney at law. (14) Because it is not alleged in said motion or commitment that the action of petitioner tended, in its operation, to degrade or make impotent the authority of the court. (15) Because it is not alleged in said motion or commitment that the action of petitioner tended in any manner to impede or embarrass the due administration of justice. (16) Because there is no allegation in said motion or commitment that petitioner intentionally committed the said alleged contempt. (17) Because, from the motion filed, it is apparent that no contempt was intended.

The writ having issued, the keeper of the prison makes return that he holds the relator by virtue of the following commitment:

United States of America, Circuit Court of the United States, Fifth Circuit, Northern District of Florida.

The President of the United States to the Marshal of the United States for the Northern District of Florida, Greeting Whereas, at a session of the circuit court of the United States for the Fifth Circuit, and Northern district of Florida, held at the city of Pensacola, in said circuit and District, on the 11th day of November, 1901, a rule to show cause why he should not be punished for contempt of the said court was duly made and entered by the said court against Ezra T. Davis for causing and procuring, as attorney of the circuit court of Escambia county, Florida, a summons in ejectment, wherein Florida McGuire was plaintiff and the Honorable Charles Swayne was defendant, to be issued from the said court and served upon the said judge of this court, to recover the possession of block 91, Cheveaux tract, in the city of Pensacola, Florida,-- a tract of land involving a controversy in ejectment then depending in the said circuit court of the United States in a case wherein the said Florida McGuire was plaintiff and the Pensacola City Company and others were defendants,-- upon the grounds: (1) That the said suit in ejectment against the judge of this court was instituted after a petition to this judge to recuse himself in the said case of Florida McGuire v. The Pensacola City Company and Others had been submitted to the court on November 5, 1901, and denied, and after the said judge had said in open court, and in the presence of the said . . . that the allegation of the said petition that he, or some member of his family, were interested in or owned property in said tract, was untrue, and had stated that he had refused to permit a member of his family to buy land in said tract because the said suit by Florida McGuire, involving the title to said tract, was in litigation before him, the said judge. (2) That after the said declaration of the said judge the said counsel was aware that neither the said judge, nor any member of his family, were the owners of or interested in any part whatever of the said tract, and had no reason to believe that he or they were so interested, and knew or could easily have known that the said block was not in the possession or control of any one, but was entirely unoccupied. (3) That the said suit was instituted against the said judge on Saturday night, the 9th instant, after six oClock, and after the court had overruled the motion of said attorneys to postpone the trial of the said cause of Florida McGuire v. Pensacola City Company and Others for a week or more, and after the said judge had announced to the counsel aforesaid that he would call the case for trial on Monday, November 11, 1901, and would then try the case, unless counsel for plaintiff made a showing why he should not so try, and the said counsel had announced that they would make such showing. (4) That the said E. T. Davis was, before the institution of the said suit against the said judge, cognizant of all the facts herein set forth. Which charges were in violation of the dignity and good order of the said court, and a contempt thereof. And afterwards, to wit, on the 12th day of November, A.D. 1901, the said defendant, having been duly served with an order to show cause why he should not be punished for the alleged contempt aforesaid, which order was returnable at said time, was duly tried by the court, upon his answer and the evidence of witnesses, on the charges aforesaid in the said rule preferred, and a verdict of guilty was duly rendered by the said court against the said defendant Ezra T. Davis. And afterwards, on the same day, our said court, by reason of the verdict aforesaid of the said court, did duly sentence the said Ezra T. Davis to be imprisoned in the county jail of Escambia county, in the state of Florida, for and during the term and period of ten days from the 12th day of November, A.D. 1901, and further to pay a fine or penalty to the United States government of one hundred dollars, and that he stand committed until the term of said sentence be...