Gaines v. Newbrough

• Decision Date: 29 February 1896
• Citation: 34 S.W. 1048
• Parties: GAINES v. NEWBROUGH, County Judge, et al.
• Court: Texas Court of Appeals

34 S.W. 1048

GAINES v. NEWBROUGH, County Judge, et al.

Court of Civil Appeals of Texas.

February 29, 1896.

Appeal from district court, Palo Pinto county; J. S. Straughan, Judge.

This was an action brought by W. H. Gaines against W. E. Newbrough, county judge, and J. K. Stubbs, J. W. Jones, J. E. Hutchins, J. W. Tipps, members of the commissioners' court, and B. M. Maddox, sheriff of Palo Pinto county, Tex., to recover $5,000 damages for false imprisonment. There was a judgment for defendants, and plaintiff appealed. Affirmed.

C. W. Massie, W. M. Wallace, and G. A. McCall, for appellant. W. P. Gibbs, M. L. Garrett, B. P. Ayres, and W. E. McConnell, for appellees.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

Suit by the appellant against the appellees, W. E. Newbrough, J. K. Stubbs, J. W. Jones, J. E. Hutchins, J. W. Tipps, and B. M. Maddox, to recover $5,000 as damages for alleged false imprisonment. Verdict and judgment for the defendants, and appeal by the plaintiff.

We find the following conclusions of fact, resting upon uncontroverted evidence: The plaintiff was the duly-appointed road overseer for commissioners' precinct 1, in Palo Pinto county. Of the defendants, the five first named were the members of the commissioners' court, Newbrough being the county judge. The last named was the sheriff of Palo Pinto county. On November 11, 1893, the plaintiff filed with the clerk of the county commissioners' court of that county his report, subscribed and sworn to by him, causing it to be submitted for the consideration of that court at its regular November term, 1893. This document purported to be made in compliance with article 4427 of the Revised Statutes. It was addressed and directed to the court, in language offensive and insulting; so much so, in fact, that we deem it improper to here insert it. The deliberate purpose of the plaintiff in submitting this document was to bring the court into the contempt and ridicule of the public. At the regular term of the court, in November, the reports of road overseers being under consideration, the foregoing report of Gaines was presented for action. The court thereupon, on November 17, 1893, by unanimous vote, adjudged the overseer guilty of contempt for making the report, and caused to be entered upon the minutes an order that he be fined "$25 for contempt of this court in making and filing a contemptuous report as overseer." It further ordered the issuance of a capias pro fine. This writ, dated November 17, 1893, was signed by the clerk of the county court of Palo Pinto county, under his hand and seal. It was addressed to any sheriff of the state of Texas. It recited the judgment of the commissioners' court of Palo Pinto county in favor of the state of Texas against W. H. Gaines for $25, and it commanded the officer to take the body of Gaines, and place him in the county jail until the amount due on the judgment should be paid, or until the defendant should be otherwise discharged. Gaines was not personally in the presence of the court when this action was taken. The writ was delivered by the clerk to the sheriff, the appellee Maddox, who shortly thereafter (about noon) met Gaines, showed him the writ, and offered to read it, but was forbidden by Gaines to do so. During the afternoon session of the court, the plaintiff, accompanied by his son, 14 years old, each with a stick in his hand, went to the door of the court room, looked into the room (the court being in session), and, turning away, said, with an oath: "It is your day now, but my turn next." He thus provoked the statement by the sheriff: "You can't come here and cuss out the officers." Immediately thereafter, while Gaines was yet in the courthouse, the clerk, John Eaton, placed his hand upon Gaines' arm. Thereupon the plaintiff raised the stick in a threatening position, when the sheriff seized him, stating to him that he would be taken to jail unless he paid the fine. The plaintiff demanded that the writ be read, and, when his demand was being complied with, he sought to kick it out of the reader's hands. Before he was imprisoned, and while under arrest, the fine was paid for him by one Hindman, and he was immediately released.

Opinion.

The contention under numerous assignments of error is that, as the contempt was not committed in the view of the court, the judgment imposing the fine and the writ issued by virtue thereof were alike void, in the absence of notice giving to Gaines an opportunity to appear and purge himself of the contempt. We think there is much force in the proposition submitted by the appellees in reply to this contention, that as Gaines was a road overseer appointed by the court, under article 4392 of the Revised Statutes, and as he was thus an officer of the court, charged by law (article 4427) with the duty of making a report to the court, and as he had filed this report, subscribed and sworn to by him, to be presented and considered in the regular order of its proceedings, and as it was thus presented and considered, he should, for all purposes concerning the report, be regarded as in court; and, as the report was highly contemptuous, that he was properly dealt with summarily; and that no scire facias was necessary. O'Callaghan v. O'Callaghan, 69 Ill. 552. If it be conceded, however, that the...