Ex parte Redmond

• Decision Date: 24 February 1930
• Docket Number: 28044
• Citation: 126 So. 485,156 Miss. 582
• Court: Mississippi Supreme Court
• Parties: EX PARTE REDMOND

126 So. 485

156 Miss. 582

EX PARTE REDMOND

No. 28044

Supreme Court of Mississippi

February 24, 1930

Division A

1 CONTEMPT. Contempt matter could not be heard in vacation. Court was without power in vacation to hear matter of contempt and enter decree of commitment to jail for contempt.

2 CONTEMPT. Motion for new trial charging presiding judge with being unfair and partial, and charging him with political bias and race prejudice, and asking judge to recuse himself in order that movent might have fair and competent judge, in absence of explanation, held contemptuous (Hemingway's Code 1927, section 751).

Language of motion for new trial, charging that presiding judge of court had not been fair and impartial, charging him with political bias and prejudice against movent because he was of Negro Race, and asking judge to grant new trial and recuse himself in order that movent might have fair and competent judge, in absence of any explanation, held contemptuous, since interest which would serve to require presiding judge to recuse himself must be that interest set forth in Hemingway's Code 1927, section 751 (Code 1906, section 995), or Constitution; that is, relationship or financial interest.

3. CONTEMPT. Court's knowledge in contempt case should be reflected in judgment for purposes of review (Hemingway's Code 1927, sections 14, 755).

Although hearing on matter of contempt, for which court may fine and imprison contemnor, under Hemingway's Code 1927, section 755 (Code 1906, section 999), is summary, and may rest entirely on knowledge of court, such knowledge should be reflected in judgment so that it may be known by those whose duty it is to review it under Hemingway's 1927 Code, section 14 (Code 1906, section 39).

4. CONTEMPT. Judgment for contempt should be clear and explicit to constitute res judicata, and warrant appellate court in affirming, reversing, annulling, or modifying it (Hemingway's Code 1927, sections 14, 755).

Where one is guilty of contempt of court, for which court may fine and imprison him, under Hemingway's Code 1927, section 755 (Code 1906, section 999), judgment should be clear enough and explicit enough to constitute res judicata, and also to warrant an appellate court in affirming, reversing, annulling, and modifying it under Hemingway's Code 1927, section 14 (Code 1906, section 39).

5. CONTEMPT. Judgment, in effect reciting court found respondent guilty of contempt, but leaving time and manner to conjecture, could not be maintained (Hemingway's Code 1927, sections 14, 755).

Judgment that respondent was guilty of direct contempt of court, and ordering, that contemptuous motion for new trial be stricken from files, and thus in effect finding that respondent was guilty of contempt, but leaving time or manner entirely to conjecture and speculation, could not be maintained under Hemingway's Code 1927, sections 14, 755 (Code 1906, sections 39, 999).

6. CONTEMPT. In direct contempt, judgment of conviction should contain material facts known to court constituting contempt (Hemingway's Code 1927. section 755).

Judgment of conviction for direct contempt, one committed in face of court, for which court may fine and imprison contemnor, under Hemingway's Code 1927, section 755 (Code 1906, section 999), should contain material facts known to court constituting contempt.

7. CONTEMPT. Filing motion for new trial is not contempt of court (Hemingway's Code 1927, section 755).

It is not contempt of court for which court may fine and imprison one under Hemingway's Code 1927, section 755 (Code 1906, section 999), to file a motion for a new trial.

8. CONTEMPT. In proceeding for direct contempt, contemnor should be permitted to make statement and apology, and courteously state views to have them incorporated in bill of exceptions (Hemingway's Code 1927, sections 14, 755).

Although proceeding is summary one, and judge may act on that which he personally knows in direct contempt under Hemingway's Code 1927, section 755 (Code 1906, section 999), yet alleged contemnor is allowed his day in court, and in fairness should be permitted to make his statement and apology, and state courteously his views, in order that he may have them incorporated in bill of exceptions granted to him under Hemingway's Code 1927, section 14 (Code of 1906, section 39).

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First district HON. V. J. STRICKER, Chancellor.

S. D. Redmond was adjudged to be in contempt of court, and he appeals. Reversed and remanded.

See, also, 125 So. 833.

Reversed and remanded.

Powell, Harper & Jiggitts, of Jackson, for appellant.

No person shall be deprived of life, liberty or property except by due process of law.

Section 14 Miss. Constitution.

The court cannot exercise power in vacation over its decrees and judgments rendered during term time after the term had ended.

Sagory v. Bayliss et al., 13 S. & M. 153; Wiggle v. Owen, 45 Miss. 669; Shirley v. Cowan et al., 44 Miss. 434; Beard v. McLain, 117 Miss. 320; Carter v. Kimbrough, 122 Miss. 542.

A court had no right to hear a case in vacation without the consent of both parties.

Section 506, Code of 1906.

There was no direct contempt in this case, and in a constructive contempt there must be a proper foundation laid before process issues and the application or foundation of contempt must contain a statement of that which constitutes the contempt.

4 Ency. Plead & Prac., p. 776; Parkhurst v. Kinsman, 2 Blatchf. F. 76 Cas. No. 10759; Ex parte Wright, 65 Ind. 504; Grace v. State, 108 Miss. 767; 4 Bl. Com. 283, 286, 288; Tidd. Prac., 478, 482; 9 Cyc. 339; 9 Cyc. p. 41; Stuart v. Reynolds, 204 F. 709; Bates' case, 55 N.H. 325; Hurst v. Whitly, 47 Ga. 366; Landon v. Wayne, Circuit Judges, 76 Mich. 358, 43 N.W. 310; Re Bradley, 7 Wall. 364, 19 L.Ed. 214; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; 4 Ency. Plead & Prac., p. 779; Sona v. Aluminum Castings Co., 214 F. 936; Wyatt v. People, 17 Colo. 252; Durham v. State, 97 Miss. p. 552; Ex parte Ellis, 66 A. S. R. 831, 117 A. S. R. 957, 6 R. C. L. 403, on proof see Wagner v. Martin, 124 Ga. 387, or 4 Ann. Cas. 180; Grace v. State, 4 S. & M. 751, 108 Miss. 767, Cooke v. U.S. 267 U.S. 535; Raffsay v. Ramsey, 125 Miss. 715.

It was absolutely necessary for Redmond in his motion for a new trial (which motion is basis of the contempt proceedings in this case) to have fully stated all of the facts upon which he relied for a reversal of the case or the appellate court will not consider the same.

Code of 1906, sec. 801; Geo. H. Barney v. Chas. Scherling, 40 Miss. 320; Armstrong v. Whitehead, 81 Miss. 35; Richburg v. State, 90 Miss. 806.

J. H. Price, of Magnolia, and Chas. M. Bryan, of Memphis, Tenn., for appellant.

Under the evidence in this case Redmond was denied the right to offer extenuating circumstances as an officer of the court. And it is certain that the facts developed in and about the contempt proceedings were not recited in the final decrees so as this court can, with any decree of certainty, apply the latter part of sec. 14, Hemingway's Code 1927.

In a procedure of this kind it would have been in keeping with just administration of the law to have assured Redmond that he could have counsel and that his witnesses might appear without fear or molestation. It was never intended that a judge should not be disqualified unless he was interested in the case or related to the parties.

Cashin v. Murphy, 138 Miss. 852.

If this were a direct contempt, then the judgment of the court should have recited all the facts and circumstances so that on appeal this court could try the case upon that record, and as the judgment did not so recite, the jurisdictional facts, the relator, has been proceeded against without due process of law.

P. H. Eager, Jr., and Chalmers Potter, both of Jackson, for appellee.

Bias on the part of the trial court constitutes no grounds for recusation and appellant's allegation in this respect constituted a direct contempt.

Sec. 751, Hemingway's Code 1927, Miss. Code; Cashin v. Murphy, 138. Miss. 853, 103 So. 787.

Filing affidavits for change of judges, or of venue, charging bias and prejudice of the judge is also punishable as contempt, unless the statute allows change on that ground.

13 C. J., par. 42, page 32; Johnson v. State, 87 Ark. 45, 112 S.W. 143, 18 L.R.A. (N.S.) 619, 15 Anno. Cas. 531; Harrison v. State, 35 Ark. 458; Re Jones, 103 Cal. 397, 37 P. 385; Lamberson v. Superior Court of Tulare County et al., 91 P. 100 (Cal.), 11 L.R.A. (N.S.) 621; Morehouse v. Morehouse, 136 Cal. 332, 68 P. 976; Harrison v. State, 35 Ark. 458.

There was a direct contempt in this case.

Neely v. State, 98 Miss. 819; 54 So. 315.

The filing of the motion and affidavit of appellant, containing impertinent and insulting language and reflecting on the integrity of the court, constitutes a direct contempt.

13 C. J., page 31, par. 40.

The fact that in the order of February 2nd, the court submitted the cause for such further proceedings as may be proper in vacation and did thereafter cite appellant and have a further hearing and render a further decree on February 6th, in no wise invalidates or impairs the original decree.

Argued orally by J. H. Price, and Robt. Powell, for appellant and by Chalmers, Potter, for appellee.

OPINION

McGowen, J.

In the chancery court of Hinds county, the appellant, S.D. Redmond, a negro lawyer, was adjudged to be in contempt of court, sentenced to pay a fine of one hundred dollars and to serve a term of thirty days in jail.

On February 2, 1929, the last day of the regular term of the chancery court, there was entered of record on the minutes of the court the following order of...