Ex parte Dickens

Decision Date11 May 1909
Citation162 Ala. 272,50 So. 218
PartiesEX PARTE DICKENS.
CourtAlabama Supreme Court

Rehearing Denied June 30, 1909.

Petition for certiorari by Charles C. Dickens to review an order incarcerating him for contempt of court. Granted in part, and petitioner discharged.

Stevens & Lyons, Francis J. Inge, Webb & McAlpin, and B. B. Bone, for petitioner.

Gregory L. & H. T. Smith, opposed.

SIMPSON J.

This is a proceeding by certiorari, from this court, seeking to have set aside certain orders of the chancery court under which the petitioner is imprisoned for contempt of court.

The first question which arises is whether or not the petitioner can have relief by this proceeding. "By the common law the power is vested in the Supreme Court to review the orders, proceedings, and judgments of all inferior courts and tribunals, and pass upon the question of their jurisdiction and decisions on questions of law; but, in the absence of some statute conferring the power of reviewing the determinations of these inferior tribunals upon questions of fact, the action of the court or tribunal is final and conclusive and cannot be reviewed, revised, or corrected on the common-law writ of certiorari." Harris on Certiorari, p 40, § 45. Originally, on certiorari, only the question of jurisdiction was inquired into; but this limit has been removed, and now the court "examines the law questions involved in the case which may affect its merits." Id p. 3, § 1. As a general proposition certiorari will not be granted in cases where the party seeking it has an adequate remedy by appeal. Harris on Certiorari, p. 37, § 44; A. G. S. R. R. Co. v. Christian, 82 Ala. 307, 309, 1 So. 121.

So it becomes necessary to decide whether the petitioner in this case has an adequate remedy by appeal. "A 'civil contempt' consists in failing to do something, ordered to be done by a court in a civil action, for the benefit of the opposing party therein." 9 Cyc. 6. While there have been some opinions to the contrary, the weight of authority, as well as the reason of the case, is that a proceeding for contempt is not a part of the main case, before the court, but is collateral to it, a proceeding in itself, and consequently would not come up for consideration on an appeal in the main case. 9 Cyc. 33; Hogan v. Alston, 9 Ala. 627.

If it were a new proposition, the writer might be disposed to think that, as it is a collateral independent proceeding, a final order of commitment would be a final decree, in that case, from which an appeal might be taken; but, as the matter has been before our own court several times, we may refer to our own cases to determine this question.

In the case of Hogan v. Alston, supra, this court said that a rule for an attachment against a party or witness "must, in general, be corrected by a mandamus, or other appropriate remedy."

Where a party appealed from a judgment fining him for contempt, the court declared the appellant was without remedy, and stated that: "If the judgment entry showed error on its face, possibly it would furnish ground for a certiorari; or, if the party has been illegally imprisoned, for a habeas corpus, it furnishes no ground for appeal." Easton v. State, 39 Ala. 551, 554, 87 Am. Dec. 49. In that case the record did not show what the facts were, upon which the contempt was adjudged, and the quotation made from Judge Ruffin seems to indicate that if the facts were stated, and were insufficient to justify the adjudication of contempt, the party should be discharged.

In a case where a physican refused to testify as an expert, without being paid for his services, and was fined for contempt, the case was brought to this court by certiorari, and the judgment of the circuit court was affirmed. Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611.

Again, where a witness refused to answer a question which might tend to criminate him, and was adjudged guilty of contempt, the case was brought up to this court by certiorari, and the order of the lower court quashed, and the petitioner discharged. Ex parte Boscowitz, 84 Ala. 463, 4 So. 279, 5 Am. St. Rep. 384.

In the Hardy Case, where Hardy was imprisoned by order of the chancery court for refusing to obey the order of the court requiring him to deliver up bonds for the payment of a debt (under a section of the Code of 1876), the matter was brought to this court by a petition for a writ of habeas corpus, and the order of this court was that "the writ of habeas corpus and certiorari will be awarded," etc. Ex parte John Hardy, 68 Ala. 303, 323.

An order granting a rule nisi to show cause why the respondent should not be adjudged guilty of contempt was held not to be such a final decree as will authorize an appeal. McKissack v. Voorheis, Miller & Co., 119 Ala. 101, 104, 24 So. 523.

The case of Brady v. Brady, 144 Ala. 414, 39 So. 237, seems to be based mainly on the fact that the decree confirming the report of the register, and ordering the defendant to pay the alimony awarded or go to jail, was not such a final decree as would support an appeal, and in that case, on account of the fact that the final decree could not place the parties in statu quo, a rule nisi was granted to show cause why a peremptory mandamus should not be granted to vacate the decree.

On the other hand, this court has entertained an appeal from an order of court refusing to commit for contempt. Adair Bros. & Co. v. Gilmore, 106 Ala. 436, 17 So. 544. The proceedings of lower courts have also been reviewed and corrected by certiorari in the following cases, to wit: Where a claim against an insolvent estate was rejected. Cawthorne v. Weisinger, 6 Ala. 714, 717. Also where one not a party to the proceeding was injured by it. Earle v. Juzan, 7 Ala. 474. Also on dismissal of petition, by administrator of a distributee, to represent his intestate in the settlement. Graham et al. v. Abercrombie et al., 8 Ala. 552. Also where a void order of removal of an administrator had been entered. Ex parte Boynton, 44 Ala. 261. Also where a justice of the peace rendered judgment against a corporation, by default, without showing that proof was made of the official character of the person on whom service was had, because an appeal would not be an adequate remedy. M. & C. R. R. Co. v. Brannum, 96 Ala. 461, 11 So. 468; Independent Pub. Co. v. Am. Press Ass'n, 102 Ala. 475, 15 So. 947. Also to quash a summary execution issued on a bond illegally returned as forfeited. Cobb v. Thompson, 87 Ala. 381, 384, 6 So. 373. Also on contest of election, without authority of law, in probate court. Clarke & Daviney v. Jack et al., 60 Ala. 271. Also in a stock law case; no appeal being provided by statute. Stanfill v. Court of Co. Rev., 80 Ala. 287; Com'rs' Court v. Johnson, 145 Ala. 553, McCulley v. Cunningham,

96 Ala. 583, 11 So. 694; In re Chetwood, 165 U.S. 462, 17 S.Ct. 385, 41 L.Ed. 782; Bessette v. Conkey, 194 U.S. 335, 24 S.Ct. 665, 48 L.Ed. 997.

From these, and other cases which might be cited, the judgment of this court is that the proper way to review the action of the court in cases of this kind is by certiorari, and not by appeal.

We think that certiorari is a better remedy than mandamus, because the office of a "mandamus" is to require the lower court or judge to act, and not "to correct error or to reverse judicial action," though it may be issued to enforce a "clear right" (5 Mayfield's Dig. 628; 9 Cyc. 65); whereas, in a proceeding by certiorari, errors of law in the judicial action of the lower court may be inquired into and corrected.

As stated by this court, under this writ "the jurisdiction of the court and the regularity of its proceedings--that is, errors of law apparent on the record--are available; but the trial is not de novo, and conclusions of fact cannot be reviewed." McCulley v. Cunningham, 96 Ala. 583, 585, 11 So. 694, 695; Clarke & Daviney v. Jack et al., 60 Ala. 271, 280; A. G. S. R. R. Co. v. Christian, 82 Ala. 307, 309, 1 So. 121; Harris on Certiorari, p. 65, § 83.

All courts have the inherent power to punish for contempt of court, and, although contempts are divided into criminal and civil contempts, yet the power of the court, in each, rests upon its right to protect its dignity and to demand obedience to its decrees.

The decree which is referred to as the decree of May 2, 1908 after stating the motion on which it is made, goes on in these words: "Upon consideration, I am of opinion that it is the duty of said surviving partner, so far as it is possible, to file such account as is required by this motion, and to do so at the earliest possible moment. The court does not, in this order, fix a time within which this must be done, further than to request that it be done within a reasonable time, as there is not sufficient data before the court to determine what would be a reasonable time within which this account could and should be prepared." On the same day (May 2d) a motion was filed by the complainant asking that an order or reference be made to a special master to state the accounts, in about the same manner as indicated for the respondent to state it. On May 9th this motion was granted, in so far as the first 10 grounds are concerned; but as to the last paragraph of said motion, asking that said special master state an account between Charles Dickens as surviving partner, and complainant, and ascertain what moneys have come into his hands as surviving partner, how he has invested the same, and what credits he is entitled to for expenses in winding up the partnership, the chancellor says it should not be granted, until the issues presented by the plea and cross-bill have been determined, also that it would require an accountant of more than ordinary ability. So the motion, on this point, is...

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