Ex parte Rust

• Court: Supreme Court of Texas
• Citation: 38 Tex. 344
• Parties: EX PARTE WM. RUST ET ALS. EX PARTE JOHN IRELAND ET ALS. EX PARTE HENRY MANEY.
• Decision Date: 01 January 1873

38 Tex. 344

EX PARTE WM. RUST ET ALS.
EX PARTE JOHN IRELAND ET ALS.
EX PARTE HENRY MANEY.

Supreme Court of Texas.

1873.

1. When a person is charged with a contempt of court, which is not committed by act in the presence of the court or so near it as to interfere with the administration of justice, no final punishment should be assessed against him until after he has been cited to show cause why he should not be punished for contempt, and notified by the citation of the matter charged against him.

2. A party cited to show cause why he should not be punished by the district court for filing an offensive brief or paper, may rest upon his exceptions to the sufficiency of the citation, if it fails to charge that he wrote, signed or filed the offensive brief or paper.

3. A judgment of the district court imposing a fine for contempt, which purports to have been rendered on a day when the court held no session, is void.

4. And a judgment rendered on return of scire facias to the party charged, requiring him to show cause “why he should not be fined as he had before been” by said void judgment, is also void.

A day having been fixed in vacation by the Hon. Henry Maney to hear argument on a motion to dissolve injunctions issued to restrain the collection of the one per cent. school

[38 Tex. 345]

tax, a paper was, on the second of May, 1872, handed by one of the parties signing the same to the clerk of the district court, but with no instructions to file, of which the following is a copy, the legal argument being omitted:

+-----------------------------------------------------------------------------+
                ¦“JOHN IRELAND ¦)¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦v. ¦1987 ¦)¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦JOHN F. ¦)¦ ¦
                ¦GORDON. ¦ ¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦A. W. DIBRELL ¦)¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦v. ¦1988 ¦)¦In district court of Guadalupe county. Petition for ¦
                ¦ ¦ ¦ ¦injunction. ¦
                +--------------+-+------------------------------------------------------------¦
                ¦JOHN F. ¦)¦ ¦
                ¦GORDON. ¦ ¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦P. W. HARDEMAN¦)¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦v. ¦1994 ¦)¦ ¦
                +--------------+-+------------------------------------------------------------¦
                ¦JOHN F. ¦)¦ ¦
                ¦GORDON. ¦ ¦ ¦
                +-----------------------------------------------------------------------------+
                

In these several cases plaintiffs rely on a perpetuation of the injunction upon the following grounds: * * *

Your honor presided at a political meeting in Seguin, on Saturday last, at which the following resolution was passed, viz.:

‘ Resolved, That we hereby utter our unqualified condemnation of those who, by injunction or otherwise, have sought to hinder the onward progress of the free school system, and through political hatred and partisan prejudice have sought to starve the infant mind, and stamp on God-given intellects the curse of ignorance. We call on the people of the state to rise in their might, and rebuke in thunder tones those who would enthrall the mind of the rising generation in darkness and ignorance, for the purpose of continuing their despotic rule; for where learning and intelligence reign, independence and republicanism reign supreme.’

And while it is not our purpose to discuss the merits of said resolution, nor make commentary on the action of your honor, yet we deem it our duty to say that as your honor neither entered your protest nor vacated your position,

[38 Tex. 346]

that resolution must have met with your approval. We therefore decline to argue the cases, believing that the dignity of the profession demands that course, in view of the fact that the judgment of the court seems to have been concluded upon a great question of constitutional and statutory law by a partisan meeting, and because at the forum, while we spoke to the judge, we could not fail to see the politician under the ermine.

+----------------------------+
                ¦(Signed¦WM. M. RUST, ¦
                +-------+--------------------¦
                ¦ ¦JOHN IRELAND, ¦
                +-------+--------------------¦
                ¦ ¦W. E. GOODRICH, ¦
                +-------+--------------------¦
                ¦ ¦JOHN P. WHITE, ¦
                +-------+--------------------¦
                ¦ ¦ALEX. HENDERSON, ¦
                +-------+--------------------¦
                ¦ ¦W. H. BURGESS, ¦
                +-------+--------------------¦
                ¦ ¦W. P. H. DOUGLASS.” ¦
                +----------------------------+
                

On the eighth day of May, 1872, the above named attorneys applied to the Hon. L. D. Evans, chief justice of the state, for a writ of habeas corpus, alleging that they were restrained of their liberty by John F. Gordon, sheriff of Guadalupe county.

Upon return of the writ, the relators were discharged from custody, on the ground that the warrant of arrest under which they were held disclosed upon its face that it was issued on the third of May, 1872, “in vacation,” and required the imprisonment of the attorneys, in default of the payment of a fine of one hundred dollars each, for a contempt.

On the discharge of the parties a mandate was issued by this court to the sheriff and district court of Guadalupe county, which contained the order releasing the prisoners, and required it to be “in all things duly recognized, obeyed and executed.”

On the third of June, 1872, scire facias was issued to William M. Rust, and each of the other attorneys, in

[38 Tex. 347]

term time, by order of Judge Maney, requiring them to appear before the district court of Guadalupe county on Monday, the tenth day of June, A. D. 1872, to show cause, if any they had, why they should not be fined, as they had been before, in the sum of one hundred dollars, for contempt of the district court of Guadalupe county, “shown in and by a brief filed in causes Nos. 1987, 1988 and 1994.”

On the seventh day of June, 1872, two of the attorneys (White and Ireland) applied to the supreme court for a citation against Judge Maney, requiring him to show cause why he should not be punished for contempt in refusing to obey the mandate of this court. They alleged in their application that after the issuing of the mandate from this court in the former proceeding, Judge Maney had directed the issuance of execution and the seizure of their property, which was then advertised for sale, to satisfy the fine for contempt imposed in May.

That application was indorsed, “Refused, June 8, 1872. EVANS, presiding justice.”

June 11, 1872. Wm. M. Rust and the other attorneys applied to the supreme court again for a writ of habeas corpus, alleging that they were illegally restrained of their freedom by one Baumgarten, who alleged that he was acting under a verbal order from Judge Maney.

Another writ of habeas corpus was awarded.

The return to this writ was made by John F. Gordon, sheriff of Guadalupe county, who stated in his return that the applicants for the writ were committed to his custody by verbal order of the honorable district court of Guadalupe county, while in session, for contempt; that he took said parties by virtue of said order, and also by virtue of orders entered on the minutes of said district court on the tenth day of June, 1872.

The order of the district court referred to in the return recited

[38 Tex. 348]

with reference to each applicant for the writ, that he had been cited to show cause, if any he had, “why he should not be fined, as he had been before, in the sum of one hundred dollars, for contempt of the district court of Guadalupe county, shown in and by a brief filed in causes 1987, 1988 and 1994, on the second of May, 1872,” etc.; “and it appearing to the court that said ______, Esq., is in contempt of this court; therefore it is ordered, adjudged and decreed by this court, that said ________, Esq., be committed to the custody of the sheriff of Guadalupe county, there to remain until he shall have paid the fine of one hundred dollars adjudged against him on the second day of May, 1872, and now adjudged against him,” etc.

Upon the case thus presented, after hearing evidence, judgment was pronounced on the fourteenth day of June, 1872.

No briefs on file for either party.

WALKER, J.

It is a matter of personal regret to the members of this court that our jurisdiction should have been twice invoked to relieve the relators from the restraint of their personal liberty.

Looking at the record filed in this case, we learn that on the third day of May, 1872, the relators were condemned to pay a fine of one hundred dollars each, in punishment of an alleged contempt of the district court, presided over by the Hon. Henry Maney. And we are judicially informed that in default of payment of the fines so assessed against the relators, they were severally committed to the custody of the sheriff of Guadalupe county.

The relators made their complaint to this court, and prayed for a writ of habeas corpus on the ground of an illegal imprisonment. They were brought before us, and on examination had before this court they were discharged

[38 Tex. 349]

on the ground that there was no district court sitting in Guadalupe county on the third day of May, 1872, and that all proceedings purporting to be had before the district court of said Guadalupe county, of that date, were null and void.

It now appears that on a day in term, to wit, the tenth day of June, 1872, the following proceedings were had in the district court of Guadalupe county, to wit:

“EX PARTE JOHN IRELAND.

John Ireland, Esq., having been required, on the third day of June, A. D. 1872, to appear before the district court of Guadalupe county on Monday the tenth day of June, A. D. 1872, to show cause, if any he had, why he should not be fined, as he had been before, in the sum of one hundred dollars for contempt of the district court of Guadalupe county, shown in and by a brief filed in cause No. 1987, and styled John Ireland v. John F. Gordon;...