Ex parte Gambrell
| Decision Date | 11 February 1946 |
| Docket Number | 36442. |
| Parties | Ex parte GAMBRELL. v. MOORE. GAMBRELL |
| Court | Kansas Supreme Court |
Appeal from District Court, Sedgwick County; Clair E. Robb, Judge.
Appeal from District Court, Sedgwick County; Clair E. Robb, Judge.
On motions for rehearing.
Motions denied.
For original opinion, see 160 Kan. 620, 164 P.2d 122.
Claude E. Sowers, of Wichita, for appellant.
L. M Kagey, of Wichita, for appellee.
On behalf of appellee there has been filed herein a letter which we treat as a motion for rehearing, also a formal motion for a rehearing. Both object to the statement in the opinion : 'In this case the testimony was not preserved, hence the opportunity to have it reviewed on appeal was frustrated.' We are now advised that the testimony received at the hearing for contempt was taken by the court reporter and could have been made available for appeal. Hence, the sentence in the opinion which is objected to might be misunderstood and we readily withdraw it.
As it reached us, the substantive question in the case, and the only one treated in the syllabus, was whether the thing appellant was charged with doing constituted contempt of court. We held it did not, and upon further consideration we adhere to that view.
We might have ended the opinion by deciding nothing more, for appellee had not complained of the case being brought here by habeas corpus rather than by appeal. This court always has the duty to determine its own jurisdiction in any case submitted to it. In doing so in this case it took notice that our statute, G.S.1935, 20-1205, provides for appeal in contempt proceedings, and also recognized the general rule that habeas corpus is not a substitute for an appeal. In order that our opinion might not be misleading in the future we thought it prudent, at least, to consider that question in the opinion. In doing so we referred to our statute, G.S.1935, 20-1202, which defines direct and indirect contempt, and pointed out that what appellant was charged with doing was not in court during a sitting of the court, neither was it before the judge at chambers in his presence. Nevertheless, counsel for appellee urged that the contempt charged was direct contempt the argument being that the parole officer of the court talked over the telephone to appellant, who was 28 blocks away from the court house, and that his should be considered as being in court during a sitting of the court, or in the presence of the judge in his chambers. We thought that argument lacked merit to the extent that it was not even mentioned in the opinion. The same argument, of course, could have been made if the appellant was 28 miles or 2800 miles away from the court or the judge in his chambers. We referred to the statute, G.S.1935, 20-1203, which prescribes the record to be made upon a hearing for direct contempt, and set our the journal entry made upon the hearing of contempt which clearly shows its lack of conformity to the statute. In direct contempt the only record required or authorized to be made is the journal entry in conformity with this statute. See State v. Anders, 64 Kan. 742, 68 P. 668.
In Sedgwick county there are four divisions of the district court, with a judge presiding over each division. The contempt proceeding was conducted in division No. 2. The habeas corpus proceeding was conducted before Judge Robb in division No. 3. With reference to that appellee in his brief said: 'No contention is raised that the Honorable Clair E. Robb did not have authority to pass upon the petition for the writ of habeas corpus.'
During the argument in this court counsel for appellee was asked upon what Judge Robb made his decision with respect to the validity of the contempt proceeding and replied, 'Upon the record.' On being asked if he meant by that the affidavit of the parole officer and the journal entry in division No. 2 he replied in the affirmative. So, if any record was made by the court reporter in division No. 2 Judge Robb did not have the benefit of it, and neither did this court have the benefit of it. We do find this statement in appellee's brief: 'The evidence was neither transcribed nor abstracted, and we, therefore, must assume that the affidavit and accusation is in all respects true.'
By inference this might indicate that some evidence had been taken by the court reporter, but there is nothing to indicate what that evidence was. The assumption which we were...
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