Ex Parte Nelson

• Decision Date: 02 June 1913
• Parties: EX PARTE WILLIAM R. NELSON, Petitioner
• Court: Missouri Supreme Court

157 S.W. 794

251 Mo. 63

EX PARTE WILLIAM R. NELSON, Petitioner

Supreme Court of Missouri

June 2, 1913

Petitioner discharged.

Frank P. Walsh, E. R. Morrison and James P. Aylward for petitioner.

(1) Petitioner was deprived of his constitutional rights by the decision of Judge Guthrie, rendered without a hearing, and by the refusal to permit the introduction of competent evidence in his defense. In re Clark, 208 Mo. 147; Paving Co. v. Ridge, 169 Mo. 384; McClatchy v. Superior Court, 119 Cal. 413, 39 L.R.A. 692; State ex rel. v Judges, 32 La. Ann. 1261; Cabinet Co. v Russell, 250 Ill. 416; Hovey v. Elliott, 167 U.S. 407; Mylus v. McDonald, 10 L.R.A. (W. Va.) 198; McGehee on Due Process of Law, p. 73. (2) An inadvertent and unintentional misstatement of fact, or apparent misstatement is not punishable as a criminal contempt, especially where, as here, the statement is true as to another division of the same court. McClatchy v. Superior Court, 119 Cal. 413; 9 Cyc. 22; In re Stewart, 3 Scam. (Ill.) 402; In re Prior, 18 Kan. 72; 3 Ency. Ev., pp. 449, 463; People v. Aitken, 19 Hun, 327; 7 Am. & Eng. Ency. Law (2 Ed.), p. 74; In re Deaton, 105 N.C. 59; Rapalje on Contempt, sec. 121; State ex rel. v. Allen, 235 Mo. 298. (3) To constitute contempt, the publication, in a case of indirect contempt, must be in reference to a pending cause. 7 Am. & Eng. Ency. Law (2 Ed.), p. 61; State v. Ashbaugh, 97 Wis. 1, 38 L.R.A. 554; Board of Law Examiners v. Hart, 104 Minn. 115; State v. Kaiser, 20 Ore. 50, 8 L.R.A. 584; State v. Publishing Co., 60 Neb. 282, 50 L.R.A. 195; Cheadle v. State, 110 Ind. 301; State v. Sweetland, 3 S.D. 503; Dunham v. State, 6 Iowa, 256; King v. Freeman's Journal, 2 Ir. Rep. 82; McLeod v. St. Aubyn, 68 L.J.P.C. (N.S.) 137. (4) The statements published do not constitute a contempt, and if there was no contempt then petitioner should be discharged. Ex parte Creasy, 243 Mo. 679.

Ed. E. Yates, O. H. Dean and Willard P. Hall amici curiae.

(1) It was not necessary for the rule or citation to allege that the publication was false. The rule was issued to compel respondent to show cause why he should not be punished for contempt in making such publication. This implied that the publication was false and required respondent to plead its truth if he relied upon that fact as a justification and defense. The rule set out the article in full. This was sufficient. If false, the publication constituted contempt. If the publication was true, it was incumbent on respondent to plead and prove it. Sheppard Case, 177 Mo. 229. It is not customary for the rule to show cause to allege that the publication is false. People v. Wilson, 64 Ill. 195. Appearance of respondent in response to the rule to show cause waived any defect therein or in the manner of its service. Petitioner was deprived of no legal right by Judge Guthrie preparing his written opinion prior to the formal hearing before him. Judge Guthrie prepared his written opinion after a careful examination and consideration of petitioner's return to the rule to show cause. Such examination and consideration resulted in Judge Guthrie reaching the conclusion that the return admitted the contempt, that is to say, that the return admitted the publication and stated no defense for having made the publication. As Judge Guthrie conceived the case to be, the gravamen of the contempt charged against Nelson lay in those parts of the publication which stated that Judge Guthrie had decided that attorneys' fees must be paid before alimony, and that in a case before him he had permitted the woman's lawyer asking for a fee to decide that he should be paid his fee and that she should have no alimony. The publication clearly attributed this conduct to Judge Guthrie. The defense offered in the answer was that that publication did not attribute this conduct to Judge Guthrie, that the publication did not intend to do so, and that in fact another judge, to-wit, Judge Lucas, was guilty of the conduct, and that the publication being true as to Judge Lucas could not be contempt against Judge Guthrie, because both judges were judges of the same court. All these defenses, except the allegation that Judge Lucas was guilty of the conduct mentioned, raised questions of law, and regardless of the question of what Judge Lucas had done, Judge Guthrie reached the conclusion that none of the defenses was maintainable. Judge Guthrie concluded (a) that the divisions of the Jackson Circuit Court were separate and distinct entities; (b) that a contempt against one division was not a contempt against other divisions; (c) that the publication clearly charged the reprehensible conduct against Division One and himself as the judge thereof: (d) that, therefore, regardless of petitioner's intention, in fact, the law conclusively presumed that he intended to say what the publication in fact did say; (e) that for this reason the defense that petitioner did not intend in fact to charge him with the reprehensible conduct was unavailing; (f) and that it was wholly immaterial that Judge Lucas had been guilty of said conduct. All these conclusions were drawn from the face of the rule to show cause and the return to it. If these conclusions were sound; if they were just; if they were correct; what legal injury was done to petitioner by Judge Guthrie by reducing the conclusions to written form prior to the hearing of the arguments of petitioner's counsel? The conclusions were tentative and not final. Writing them down did not make them permanent. Written, they were no more permanent than before they were written. They were still subject to change and modification, if shown to be wrong by the arguments of petitioner's counsel. If correct, they should not have been changed. Therefore, the question is as to the correctness of Judge Guthrie's conclusions, and not as to when they were reached, or as to when they were written. Petitioner stated his defense in the return. If, in law, the return constituted no defense, Judge Guthrie deprived him of no legal right by so deciding. A just and sound judgment against petitioner denied him no legal right. (2) Judge Guthrie was right in ruling that the divisions of the circuit court of Jackson county were separate and distinct entities, that contempt against one division was not contempt against any other division, and that it was no defense to the charge that petitioner had committed contempt against Division One by publishing that said division had decided that lawyers must be paid before alimony, etc., to say that Division Two had so decided. State ex rel. v. Woodson, 86 Mo.App. 253; State v. Callaway, 154 Mo. 91; Priddy v. Boice, 201 Mo. 309; Eudaley v. Railroad, 186 Mo. 399; Guy v. Railroad, 197 Mo. 174; 40 Cyc. 180. Now a change of venue will not be granted in a contempt proceeding, for the reason that every court is the exclusive judge of contempts against its authority, and no court can punish a contempt of another court. Sheppard Case, 177 Mo. 229; Crook v. People, 16 Ill. 534; State ex rel. v. Bland, 189 Mo. 207. (3) The publication's reference to Judge Guthrie was clear and unambiguous, and, therefore, no evidence was admissible to show that it was not intended to refer to him or that such reference was a mistake. Hayes v. Press Co., 127 Pa. St. 642; Lawson v. Watkins, 61 Minn. 137; Dorr v. United States, 195 U.S. 138; Clement v. Moore, 7 Moore C. Pl. (Eng.) 200. (4) Neither was such evidence admissible upon the theory that it was necessary to prove that petitioner intended to commit a contempt against Judge Guthrie in order to find him guilty of such contempt. Where the publication is unambiguous and clearly constitutes contempt, the intent is conclusively presumed. The publisher is conclusively presumed to mean what the publication clearly states. Fishback v. State, 131 Ind. 314; In re Wooley, 11 Bush (Ky.), 109; The People v. Frees, 1 Caines (N. Y.) 485; Rapalje on Contempt, secs. 55, 131; In re Chadwick, 109 Mich. 588; People v. Wilson, 64 Ill. 195; Sturoe's Case, 48 N.H. 428; Newspaper Co. v. Commonwealth, 172 Mass. 294. (5) It is the settled law in Missouri and it is also the law quite generally in the other States of this country that attorneys are regarded as officers of the courts, and that the attorneys for women in divorce suits, under proper circumstances, will be allowed reasonable compensation against the husbands, and protected in the collection of said fees just as are other officers of the courts protected in the collection of their costs. Isbell v. Weiss, 60 Mo.App. 4; Waters v. Waters, 49 Mo. 386; Hamilton v. Salisbury, 133 Mo.App. 718. Though the allowance is in favor of the wife as part of her alimony, it is for the benefit of her attorney. He moves for the allowance. People ex rel. v. District Court, 21 Colo. 251. This rule is not peculiar to Missouri, it prevails quite generally in the States of this Union. Courtney v. Courtney, 4 Ind.App. 221; Davis v. Davis, 141 Ind. 367; Weaver v. Weaver, 33 Ga. 172; Louden v. Louden, 65 How. Pr. (N. Y.) 411; Lamy v. Catron, 5 N. M. 373; Burgess v. Burgess, 5 Dev. (Ky.) 228; Thorndike v. Thorndike, 1 Wash. (Terr.) 175; Thornberry v. Thornberry, 2 J. J. Marsh (Ky.), 325; Williams v. Monroe, 18 T. B. Mon. (Ky.) 515; Ballard v. Carpenter, 2 Met. (Ky.) 412. (6) This publication was a contempt because it related to the Clevinger case which was then, and still is, pending undisposed of, and tended to impede, embarrass and obstruct the final disposition of said case. Cummings v. Bennett, 8 Paige, 79; Simpson v. Brewster, 9 Paige, 246; Saxton v. Stowell, 11 Paige, 526.

WOODSON, J. Brown, J., concurs in last paragraph and result only.

OPINION

In Banc.

Habeas Corpus.

WOODSON J.

-- This is a proceeding by habeas corpus, instituted by the petitioner,...