Ex Parte Norton

• Citation: 191 S.W.2d 713
• Decision Date: 16 January 1946
• Docket Number: No. A-734.,A-734.
• Parties: Ex parte NORTON.
• Court: Supreme Court of Texas

Page 713

191 S.W.2d 713

Ex parte NORTON.

No. A-734.

Supreme Court of Texas.

January 16, 1946.

Original habeas corpus proceeding in the Supreme Court on the relation of Milton K. Norton.

Order granting temporary writ of habeas corpus set aside, and relator remanded to custody.

J. E. McLemore, Jr. and Carl E. Broyles, both of Dallas, for relator.

R. Guy Carter, Howard Barker, Carter, Gallagher & Barker, and Ben T. Warder, Jr., all of Dallas, for Kathleen Voisen.

SHARP, Justice.

Relator, Milton K. Norton, because he was adjudged to be in contempt of court by the Honorable John A. Rawlins, Judge of the 116th Judicial District Court of Dallas County, Texas, was committed to the custody of the Sheriff of Dallas County. Relator filed a petition for habeas corpus in this Court, and was released under bond pending the final decision of his petition.

The precise question presented here is whether the facts embraced in the record show that the trial court found relator guilty of contempt for his conduct and acts committed in the presence of the court, and whether the court was authorized to enter the judgment of contempt for such conduct and acts.

The judgment of contempt sets out the facts which caused the court to hold relator in contempt, as follows:

On November 13, 1945, came on to be heard before the court, without a jury, cause No. 96049F, Kathleen Voisen v. Lucile Nichols, the suit being in the nature of a habeas corpus proceeding for the custody of a minor child. At a previous date the Honorable W. L. Thornton, sitting for the 116th District Court, had granted a temporary restraining order, restraining the defendant from interfering with plaintiff's custody of the child and from removing the child from the jurisdiction of the court; and on or about November 6, 1945, the Honorable John A. Rawlins, judge of said court, had reset the case for trial on its merits, together with the habeas corpus proceeding, for November 13, 1945, continuing the temporary restraining order in full force until the final disposition of the case. On November 13, 1945, the judge announced that he had some other cases to hear and business to transact, and that it was about time for a recess of the case. Thereupon counsel for the defendant moved the court that defendant, mother of the minor, be permitted to have custody of the minor child during the recess period. This motion was overruled by the court; leaving the custody of the minor with the plaintiff, aunt of the minor. While hearing other matters during the noon hour, a report came to the judge that defendant had possession of the child and was leaving the courthouse. The judge instructed the bailiff to bring the defendant and the child back into the courtroom, which he did. The attorneys, and particularly relator Milton K. Norton, and all other interested parties being present, the court, being in session, then heard the parties concerning the matter, at which time, as recited in the judgment of contempt, relator stated to the court: "That he couldn't see where his client had done anything wrong; that she had a right to the child and the plaintiff did not; that she asked him about taking the child and he told her to go ahead, that there was nothing to stop her and there was no court order against it; that she was outside the courtroom and nothing could be done about it; and the said Norton further stated to the Court, when the Court remarked that he considered his conduct in contempt, that it was immaterial to him what the Court did about it and that he knew something about contempt himself and that he knew his rights." The judgment further reads: "It appearing to the Court, and the Court further finds, that the above mentioned acts, words and conduct of the said attorney, Milton K. Norton, are disrespectful, contumacious and contemptuous of the authority and dignity of the said Court and in violation of the oath and duty of the said Milton K. Norton as an officer of the Court, and constitutes contempt of this Court."

Relator's punishment was fixed at a fine of $50 and confinement in the county jail of Dallas County, Texas, for a period of one full day, twenty-four hours.

The Clerk of the Court, in obedience to the foregoing judgment of the court, issued an attachment and commitment in contempt, commanding that the Sheriff of Dallas County take relator into custody until he complied with the foregoing judgment.

Relator contends that no contempt was committed. His position is that the temporary restraining order giving custody of the minor to the plaintiff was no longer in effect and was improperly extended by the court. He further states that if there was any contempt, it was committed wholly outside the presence of the court; that there was no affidavit nor formal notice issued concerning such contempt; that he was given no opportunity for a hearing; and that he was fined and incarcerated without due process of law.

The statutes of this State do not define contempt of court, nor do they state the circumstances under which the courts exercise jurisdiction over contempt proceedings. 9 Tex.Jur., p. 581, § 1. The accepted rule on the question of contempt of court is stated in 12 Amer.Jur., p. 389, § 2, in the following language: "Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass, or obstruct the court in discharge of its duties is guilty of contempt." See also 9 Tex.Jur., p. 381, § 1.

In 12 Amer.Jur., p. 390, § 4, is found the general definition of direct and constructive contempts, accepted by both civil and criminal courts, as follows: "Contempts of court are classified as direct and as indirect, or constructive, the test being whether the contempt is offered within or outside the presence of the court. A direct contempt consists of words spoken or acts committed in the presence of the court * * *."

If the facts embraced in this record show that the trial court was undertaking to hold relator in contempt for a constructive contempt, then relator's contention is correct, and the judgment of the trial court should be set aside.

Relator cites may decisions in support of his contentions. The following are the main ones: Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541; Ex parte Kearby, 35 Tex.Cr.R. 634, 635, 34 S.W. 962; Ex parte Miller, 92 Tex.Cr.R. 489, 244 S.W. 612.

The decisions relied upon by relator are not in point, and deal mainly with facts involving constructive contempts. In the case of Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541, Mr. Justice Greenwood, writing the opinion for this Court, stated the heart of the case involved there in the following paragraph: "It is manifest that the act adjudged contemptuous took place without the presence of the court. Such act was the real or pretended sale of the notes after the date of the restraining order. The court was utterly without a basis for any finding as to the true date of the notes' sale or transfer save as derived from the testimony of witnesses introduced on the...