Frey v. Willey

• Decision Date: 09 March 1946
• Docket Number: 36540.
• Parties: FREY v. WILLEY et ux.
• Court: Kansas Supreme Court

166 P.2d 659

161 Kan. 196

FREY v. WILLEY et ux.

No. 36540.

Supreme Court of Kansas

March 9, 1946

Appeal from District Court, Shawnee County; Paul H. Heinz, Judge.

Appeal from District Court, Shawnee County; Paul H. Heinz, Judge.

Action by J. W. Frey against Henry T. Willey and Belle Willey, his wife, to enjoin defendants from digging a ditch which would permit flood waters to flow across plaintiff's farm. Injunction was granted and thereafter William Frey and Viola Fairbanks, son and daughter respectively of plaintiff, filed a pleading designated as an application for citation for contempt charging violation of terms of the injunction. From a judgment sustaining motion to quash an order citing defendants to appear and show cause why they should not be held in contempt, Viola Fairbanks and William Frey appeal.

Reversed and cause remanded.

Syllabus by the Court.

1. A contempt proceeding, the purpose of which is to protect the private rights of litigants or their successors in interest is civil not criminal in nature.

2. Indirect contempt proceedings in general, irrespective of whether they are civil or criminal in nature, when they are instituted for the purpose of correcting violations of injunction mandates, are not independent actions but are properly instituted and triable as a part of the original injunction action.

3. Once parties accused of contempt for violation of injunction orders are properly before the court the merits of the original suit are not involved and the sole question for determination is whether such orders have been violated.

4. Contempt proceedings of the kind referred to in the three preceding paragraphs of the syllabus are summary in nature and sui generis in character.

5. The general rule is that contempt proceedings such as are described in paragraphs 1 and 2 of the syllabus may be instituted by an aggrieved party, or his successor in interest, or someone who has a pecuniary interest in the right to be protected.

6. In this jurisdiction by statute the artificialities between actions at law and actions in equity have been abolished and equity decrees may in all cases be so framed as to act on property and include whatever redress, legal or equitable justice requires.

7. The record in the contempt proceeding fully described in the opinion examined, and held: (1) The decree in the original injunction suit was in rem as well as in personam, (2) under sections of our statute prescribing procedure for indirect contempt proceedings heirs at law and successors in interest of a deceased plaintiff may initiate a proceeding for violation of the orders of an injunction judgment without first having been made parties to the original cause and (3) the motion to quash a citation order procured by heirs at law of a deceased plaintiff under circumstances described in this syllabus and in the opinion was improperly sustained.

Ward D. Martin, of Topeka (A. Harry Crane and Harry Snyder, Jr., both of Topeka, on the brief), for appellants.

Walter T. Chaney, of Topeka, for appellees.

PARKER Justice.

This is an appeal from a judgment sustaining a motion to quash an order citing the defendants to appear before the district court and show cause why they should not be held in contempt. Although they are not in dispute a brief statement of the facts is required in order to fully understand the issue presented.

On the 26th day of April, 1935, in an action then pending in the district court of Shawnee County, one J. W. Frey, who owned a farm which was situated between the Kansas or Kaw river on the south and land to the north owned by the defendants Henry T. and Belle Willey, obtained a permanent and perpetual injunction against such defendants prohibiting them, their heirs, grantees and assigns, from digging a ditch through an elevation or bench extending in an easterly and westerly direction across the south side of their land and which if constructed would cause flood waters accumulating thereon to flow contrary to the natural course of drainage over, upon and across, such plaintiff's farm. Subsequently, J. W. Frey died and his son, William Frey, and his daughter, Viola Fairbanks, became the legal owners of the real property owned by him at the time of the commencement of the injunction proceeding. After his death the Willeys renewed their attempts to dig a ditch through the elevation or bench. On the 27th day of August, 1945, and in the original action, the son and daughter filed a pleading, which they designated an application for citation for contempt, charging Mr. and Mrs. Willey with violation of the terms and requirements of the permanent injunction. Thereafter the citation order to which we have heretofore referred was issued and served upon them. When they appeared in response thereto the Willeys filed a motion to quash such order upon the ground the persons initiating the contempt proceeding were not proper parties plaintiff. The district court's ruling in sustaining that motion resulted in this appeal by William Frey and Viola Fairbanks.

At the outset it should be stated that in this jurisdiction there are three recognized methods of procedure in indirect contempt proceedings.

One section of our statute, G.S.1935, 20-1204, deals with indirect contempts in general including that class of contempt cases properly classified as criminal contempt. In part it reads: ' That upon the return of an officer on process or an affidavit duly filed showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person be arrested and brought before the court or judge in chambers; * * *.' (Emphasis supplied.)

Another, G.S.1935, 60-1116, pertains solely to contempt proceedings with respect to disobedience of injunctions. It outlines the procedure to be followed in cases of that character. Pertinent portions thereof are: 'An injunction granted by a judge may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt, by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, * * *.' (Emphasis supplied.)

The most recent legislative expression on the subject is Chapter 148, L.1935, G.S.1935, 20-1207. It relates to service of citations for contempt in civil cases and reads: ' When it is duly made to appear to the district court, or judge thereof, that an order made by such court or judge in a civil action, the violation of which order is punishable by contempt, has been violated, the court or judge may issue a citation for the party charged with the violation of such order, and such citation when so issued may be directed to and served by the sheriff of the county in which such citation was issued, or of any county in the state; and such sheriff, or any of them, or their undersheriffs or deputies, may execute the citation in the manner therein directed and may bring the party charged with violating the order before the court or judge issuing the citation to be dealt with as the nature of the case and the facts pertaining thereto warrant.' (Emphasis supplied.)

We are not informed by appellants as to the section of the statute on which they rely as justifying the procedure followed by them in the initiation of this contempt proceeding. In fact the record indicates a commingling of the procedure outlined by each of such sections. Be that as it may, since it is not contended the accusation was insufficient in form or that the procedure followed was not in harmony with statutory requirements, we pass any issues of that character which might have been subjects of dispute without comment or decision and proceed directly to a determination of the question of whether the motion to quash the citation order was properly sustained. However, before doing so it should first be said an examination of the record discloses that under our decisions (Smith v. Clothier, 113 Kan. 47, 213 P. 1071; Holloway v. Peoples Water Co. 100 Kan. 414, 420, 167 P. 265, 2 A.L.R. 161; Barton v. Barton, 99 Kan. 727, 728, 163 P. 179), the issue here involved springs not from a criminal but from a purely civil contempt proceeding. Likewise, that such proceeding--and for that matter contempt proceedings in general where violation of injunction mandates are involved irrespective of whether they are civil or criminal in nature--is not an independent action but a part of the original injunction suit and properly instituted and triable therein. Barton v. Barton, supra, The State v. Porter, 76 Kan. 411, 412, 91 P. 1073, 13 L.R.A.,N.S., 462; The State v. Plamondon, 75 Kan. 269, 272, 89 P. 23; The State v. Thomas, 74 Kan. 360, 369, 86 P. 499; The State ex rel. Curtis v. Durein, 46 Kan. 695, 696, 27 P. 148 and State v. Cutler, 13 Kan. 131. Also, that once the parties accused of contempt are properly before the court the merits of the original suit are not involved and the sole question for determination is whether the permanent injunction order and judgment has been violated by them. Smith v. Clothier, supra.

Having disposed of auxiliary matters involved we now direct our attention to the all determinative issue raised by the appeal. Appellants state the sole question is, 'Who is entitled to initiate contempt proceedings to enforce a permanent and perpetual injunction?' Appellees contend it to be 'Did the judgment of the trial court abate until such time as it was revived by the personal representatives or heirs at law of the plaintiff?' Destinctions in phraseology as used by the parties are of little importance. They agree that, however stated, the question for ultimate decision is whether the...