Freeman v. City of Huron

• Citation: 8 S.D. 435,66 N.W. 928
• Parties: FREEMAN v. CITY OF HURON et al.
• Decision Date: 09 April 1896
• Court: Supreme Court of South Dakota

8 S.D. 435

66 N.W. 928

FREEMAN

v.CITY OF HURON et al.

Supreme Court of South Dakota.

April 9, 1896.

Error to circuit court, Beadle county; A. W. Campbell, Judge.

Contempt proceeding for violation of an order in an action of John C. Freeman against the city of Huron and others. The accused were found guilty, and bring error. Reversed.A. W. Wilmarth, for plaintiffs in error. W. A. Lynch, for the State.

HANEY, J.

This is a contempt proceeding, brought here for review upon a writ of error. On May 10, 1895, in the above-entitled action, then pending in the circuit court of Beadle county, after due notice and hearing, the following order was made: “And it is ordered that the said defendant, said city of Huron, and E. C. Patterson, as treasurer thereof, and each of them, and their agents and servants, pending the trial of said cause, and until the final determination thereof, be, and they are each of them hereby, restrained and enjoined from paying out any of the funds of the said city of Huron, other than the special sidewalk fund and the sinking fund, on any warrant, or in any other way or manner than on warrants duly issued payable out of the general fund of said city, in the order of the presentation of warrants as the same appear on the warrant register kept in the treasurer's office of the city of Huron.” On October 4, 1895, while such order was in force, upon an affidavit of W. A. Lynch, Esq., attorney for plaintiff, a rule was issued requiring H. Ray Myers, mayor of Huron, D. W. Smith, E. M. Thomas, J. M. Jarvis, and George T. Groves, aldermen of said city, and A. W. Wilmarth, Esq., as its attorney, to show cause why each of them should not be punished as for a contempt, in violating the above-mentioned order. All appeared except Myers. Mr. Lynch and Mr. Mouser, members of the Beadle county bar, neither of whom was state's attorney, conducted the prosecution. Mr. Wilmarth acted as attorney for the accused. The affidavit of Mr. Lynch and all papers are entitled in this action, except the judgment, which is in the name of the state against the parties who appeared and were found guilty. Each of the accused who appeared filed an affidavit. Oral and record evidence was received. At the conclusion of a trial wherein accused were given an opportunity to adduce all the evidence they desired, the court made this announcement: “The judgment of the court in this case will be that these defendants who appear here be adjudged guilty of a contempt of this court; that each of them be fined $100 and costs, and, in case of failure to pay the fine, they be imprisoned in the county jail for a period of thirty days.” A motion in arrest of judgment was made and overruled. Subsequently a formal judgment, reciting in detail the proceedings, the findings of the court, and imposing the same punishment as that previously announced, was signed and filed in the absence of the accused and of their attorney.

A motion to dismiss the proceeding because entitled in the civil case, and not in the name of the state, and because it was not conducted by the state's attorney, was denied. This is assigned as error. Regarding procedure in contempt cases, the authorities are in inextricable confusion. There is no settled doctrine with reference to the proper method of framing the title to such proceedings. 4 Enc. Pl. & Prac. 772. We have no statute regulating the matter. The proceeding is special and peculiar,-in the nature of, but not strictly, a criminal action. State v. Knight, 3 S. D. 509, 54 N. W. 412. Important constitutional provisions, applicable to criminal actions, are not applicable to this proceeding. State v. Mitchell, 3 S. D. 223, 52 N. W. 1052. It would be better practice to institute an independent action in the name of the state, and assimilate the proceeding to the criminal procedure as nearly as practicable; but, believing the course adopted in the court below was warranted by abundant authority, and that it did not tend to prejudice the accused in respect to any substantial right, we hold there was no reversible error in the manner of entitling the affidavit and other papers, and that there was no error in allowing counsel, other than the state's attorney, to conduct the prosecution.

An affidavit was filed by each of the accused which was treated as an answer, and upon the issue so raised evidence was adduced on each side. Possibly a more simple and commendable method would have been to treat the Lynch affidavit as a complaint or information, to which accused might have pleaded not guilty, and thus thrown upon the prosecution the burden of proving all of the allegations necessary to sustain the contempt charged. We would certainly approve the adoption of such procedure. However, we find nothing in the record which indicates that these persons were not fairly tried upon...