Ex parte Mettler
| Decision Date | 19 February 1915 |
| Docket Number | 3616. |
| Citation | 146 P. 747,50 Mont. 299 |
| Parties | EX PARTE METTLER. |
| Court | Montana Supreme Court |
Application of Frank W. Mettler for a writ of habeas corpus. Demurrer to return sustained, and petitioner ordered discharged.
Frank W. Mettler, an attorney duly admitted to practice in the courts of this state, having been adjudged to be in contempt of the district court of Lewis and Clark county, applied for his release from imprisonment upon habeas corpus proceedings. The sheriff has made return to the writ that he detained the petitioner by virtue of a certain order of the district court, which is attached to and made a part of the return and is as follows:
"[Title of Court.]
In the Matter of the Contempt of F. W. Mettler.
The court having under consideration the disobedience of a subp na by a witness who was duly subp naed in this court, and having placed the witness upon the stand and interrogated him as to the reason why he did not appear, F. W. Mettler, an attorney and practicing lawyer at this bar, interrupted the proceedings by making demands that he be heard after the court had told him that there was nothing to be heard, and he refused to sit down, and by his conduct, words, and manner disturbed the orderly proceedings of this court, and by his insolent demeanor, angry words, is in contempt of this court and is adjudged in such contempt, he will pay a fine of $300 and stand committed to the county jail until this fine is paid."
A demurrer has been interposed, and the only questions which call for solution are such as appear from the face of the return and test the jurisdiction of the court which entered the order; and the further inquiry whether this petitioner was held by legal process. In State v. District Court, 35 Mont. 321, 89 P. 63, this court, having under consideration a proceeding of similar character, said:
"While there is some conflict between the early and later decisions as to the scope of the meaning of the term 'jurisdiction' as applied to a case of this character, the decided weight of authority now supports the view that, in order for the judgment to be proof against an attack made by habeas corpus proceedings, the court rendering it must have had jurisdiction of the person and of the subject-matter, and, in addition thereto, must have possessed the power or authority to render the particular judgment which it did pronounce; and the absence of any one of these factors renders the judgment void, and consequently open to collateral attack."
That the district court had jurisdiction of the subject-matter is determined by the Constitution. Section 11, art. 8, Constitution; State v. District Court, 35 Mont. 51, 88 P. 564. The order above discloses on its face that the court had jurisdiction of the person.
A contempt committed in the immediate presence of the court is designated "direct," as distinguished from a "constructive" contempt, which is not committed in the court's presence. A contempt directed against the dignity or authority of the court is "criminal," as distinguished from a "civil" contempt, which arises out of a failure to obey an order made in a civil action for the benefit of the opposing party. A direct contempt may be punished summarily (Rev. Codes, § 7311), but a constructive contempt can be punished only after a hearing upon an affidavit showing the facts constituting the contempt (section 7311) and the answer thereto by the party accused (section 7317).
It appears from the order under consideration that it was the purpose of the lower court to punish this petitioner for a criminal contempt committed in the immediate presence of the court, and by this process of elimination our inquiry is narrowed to an investigation of two questions: Had the district court authority to make this particular order? and was the paper authority in the hands of the sheriff effective for the purpose intended?
Section 7309, Revised Codes, enumerates the acts and omissions which constitute contempt of court. Among them are:
From the tenor of the order in question, it appears that this petitioner was charged with misconduct under one or more of these subsections. But in the wisdom of the Legislature it was deemed incompatible with our ideas of the due administration of justice that the decision of the presiding judge should be final, and provision was made accordingly for a review by this court. Section 7322. While the right to punish for a direct contempt is inherent in the court, the procedure is purely statutory, and compliance with the law must be had. Having invoked the remedy by habeas corpus proceeding, the law does not permit the petitioner to deny the facts stated in the order adjudging him to be in contempt. Such facts as are stated are to be taken as true, but no presumptions or intendments are to be indulged against the accused. Batchelder v. Moore, 42 Cal. 414. To the end that the order adjudging one to be in contempt may be reviewed, section 7311 provides:
"When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily, for which an order must be made, reciting the facts as occurring in such immediate view and presence."
Unless the order recites the facts which constitute the alleged contempt, no review is possible; and if an order omitting such facts be permitted to stand, the very purpose of the statute would be defeated.
The only facts recited in the order above are that the accused attorney (a) demanded to be heard, and (b) refused to sit down. The recitals that Mettler "by his conduct, words and manner disturbed the orderly...
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