Ex parte Martin

• Decision Date: 05 August 1932
• Docket Number: 32315
• Citation: 52 S.W.2d 405,330 Mo. 1142
• Parties: Ex Parte T. J. Martin, Petitioner
• Court: Missouri Supreme Court

52 S.W.2d 405

330 Mo. 1142

Ex Parte T. J. Martin, Petitioner

No. 32315

Supreme Court of Missouri

August 5, 1932

Petitioner discharged.

Bryan Williams, Cave & McPheeters and Jeffries, Simpson & Plummer for petitioner.

(1) It is plain that the attempt in the motion for an attachment for contempt in this case does not attempt to charge a direct or criminal contempt, that is, a contempt committed in the presence of the court, and, therefore, that the contempt sought to be charged was an indirect or civil one. In re Clark, 208 Mo. 144, and cases cited; State ex inf. v Shepherd, 177 Mo. 205; McNealey v. Rouse, 264 S.W 385. (2) Even in a direct criminal contempt proceeding where the court may punish summarily the commitment must set out fully the findings of the court and the findings must set forth such facts as actually constitute a contempt. Sec. 1867, R. S. 1929; Ex parte Creasy, 243 Mo. 690; In re Hagan, 295 Mo. 452; In re Clark, 208 Mo. 144; Sands v. Richardson, 252 S.W. 994. (3) And where, as in the case at bar, it is sought to charge a person as for a civil contempt, the verified motion or application for the citation or writ of attachment must contain a plain and definite charge of the facts constituting the contempt, just as the facts constituting the contempt must be recited in a direct contempt in the warrant of commitment. Ex parte Nelson, 251 Mo. 63; In re Clark, 208 Mo. 147; State ex rel. Smith v. Empie, 285 S.W. 767. (4) (a) The first arrest, detention and restraint of the petitioner under the order for the issuance of a writ of attachment was also illegal because said order of attachment does not state any facts showing that a contempt of court had been committed by the petitioner and in nowise contained any notice of the charges against him, and was and is a denial to him of the right to be informed of the nature of the charges alleged, and was a denial of due process of law accorded to him and to all persons by the Constitutions of the United States and the State of Missouri. Sec. 1, Art. IV, Const. U.S.; Sec. 30, Art. II, Const. Mo.; Sec. 1866, R. S. 1929; In re Clark, 208 Mo. 147; Ex parte Nelson, 251 Mo. 63; State ex rel. Smith v. Empie, 285 S.W. 767; State ex rel. v. Knott, 207 Mo. 167. (b) Likewise, the second arrest under the writ of attachment was illegal because said writ was never issued by the circuit court or by an order of the circuit court and because it does not state any facts showing that a contempt of court had been committed by the petitioner and did not contain any notice of any charges that had been filed against him, and said arrest was, therefore, a denial to him of the right to be informed of the nature of the charges alleged and was a denial of due process of law accorded to him and to all persons by the Constitutions of the United States and the State of Missouri. See authorities under preceding paragraph. (5) Petitioner could not be held guilty of contempt of court on the ground that he had violated or failed to comply with a decree of the circuit court in a civil case unless a certified copy of that decree had been served upon him and his refusal thereafter to comply therewith. Sec. 1102, R. S. 1929; Ex parte Le Mond, 295 Mo. 595; Sands v. Richardson, 252 S.W. 994.

OPINION

Gantt, J.

Petitioner seeks discharge from the custody of the Sheriff of St. Louis who restrains him under two writs issued by the circuit court of said city in the case of Blake et al. v. Skouras Bros. Enterprises, Inc., a Corporation, et al.

On May 14, 1932, plaintiffs caused the court to issue in said case a writ of attachment (so-called), commanding the sheriff to attach the body of petitioner and him safely keep and produce in court on May 17, 1932, to show cause, if any, why he should not be punished for contempt in refusing to obey an order made in interlocutory decrees entered in said case. By said decrees the court appointed receivers for defendant corporation, authorized them to take charge of its properties and ordered the individual defendants, who were officers of the corporation, and all other persons, to deliver properties of the corporation to said receivers.

Plaintiffs contended that petitioner was in control of properties of the corporation; that he was a nonresident and on a business visit to Missouri; that he would ignore a preliminary order to show cause by leaving the State, and for that reason the court should issue a writ of attachment commanding the sheriff to attach the body of petitioner and produce him in court. The court sustained the contention and, as stated, issued the writ.

The sheriff executed the writ on May 14, 1932, and produced the body of petitioner in said court on May 17, 1932. At that time petitioner moved for his discharge, alleging that he was unlawfully restrained of his liberty for reasons set forth in the motion. The court overruled the motion. Even so plaintiffs doubted the legality of petitioner's restraint, and caused the court to issue another writ of attachment commanding the sheriff to attach...