Ex parte Wheeler

• Decision Date: 21 November 1935
• Docket Number: 6 Div. 849
• Citation: 165 So. 74,231 Ala. 356
• Parties: Ex parte WHEELER, Judge.
• Court: Alabama Supreme Court

165 So. 74

231 Ala. 356

Ex parte WHEELER, Judge.

6 Div. 849

Supreme Court of Alabama

November 21, 1935

Rehearing Denied Jan. 16, 1936

Petition of Robert J. Wheeler, as Judge of the Circuit Court of Jefferson County, for writ of prohibition to the Court of Appeals.

Writ granted.

Erle Pettus and Erle Pettus, Jr., both of Birmingham, for petitioner.

Roderick Beddow and G. Ernest Jones, both of Birmingham, for respondent.

BOULDIN Justice.

"Every court has power--1. To preserve and enforce order in its immediate presence. *** 4. To control, in furtherance of justice, the conduct of its officers, and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto." Code, § 8576(4631).

For the effectual exercise of the powers conferred by the above section, the court may punish for contempt. Code, § 8579(4632).

The power to "inflict summary punishment for contempts" extends to "1. Disrespectful, contemptuous, or insolent behavior in court, tending in anywise to diminish or impair the respect due to judicial tribunals, or to interrupt the due course of trial." Code, § 8574 (4630).

These statutes are merely expressive or definitive of the power to punish contempts, incident to all courts, essential to their functioning as tribunals for the orderly and effective administration of justice; a power as ancient as courts themselves.

The imposition of punishment for a direct contempt in the presence of the court, within limits prescribed by statute is not reviewable upon an issue of fact dehors the record in any court or in any form. Such a proceeding would defeat the very ends for which such power must exist.

The power to "inflict summary punishment" cannot coexist with a right in the party to supersede and review the judgment upon an issue of fact with the trial court itself. Easton v. State, 39 Ala. 551, 87 Am.Dec. 49; Ex parte John Hardy, 68 Ala. 303; Ex parte Dickens, 162 Ala 272, 50 So. 218; Ex parte Bankhead, 200 Ala. 102, 75 So. 478; Pope v. State, 229 Ala. 643, 159 So. 51; 13 C.J. 97 § 155.

Where the record in contempt proceedings discloses a want of jurisdiction, or an error of law in holding that to be contempt which in law is no contempt, but the exercise of a lawful right, a review may be had by common-law certiorari. Thus in Ex parte Boscowitz, 84 Ala. 463, 4 So. 279, 5 Am.St.Rep. 384, a witness claimed his constitutional right to refuse to answer a question tending to incriminate him. The facts were incorporated in the judgment, and so were reviewable by certiorari.

Other cases disclose a want of jurisdiction in the court to make the order whose violation is alleged to be a contempt ( Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971); or, if the matter has proceeded to the point of imprisonment on a committal, void on the face of the record, habeas corpus is a remedy. Ex parte Pearce, 111 Ala. 99, 20 So. 343; Ex parte John Hardy; Ex parte Dickens, supra.

In case of violation of a decree or process, the question of jurisdiction, vel non, usually appears from the record on which such decree was rendered, or process issued.

And in the case of orders in court, whose violation leads to contempt proceedings, such as in Ex parte Boscowitz, supra, this court has strongly commended a recital in the record of the facts upon which the party is adjudged in contempt, so that there may be a review by certiorari.

The just judge is pleased to present the matter in such form that his own error, if any, may not...