Hawkins v. The State

• Decision Date: 11 December 1890
• Docket Number: 15,389
• Parties: Hawkins et al. v. The State
• Court: Indiana Supreme Court

26 N.E. 43

126 Ind. 294

Hawkins et al. v. The State

No. 15,389

Supreme Court of Indiana

December 11, 1890

From the Daviess Circuit Court.

Judgment affirmed.

A. J Padgett, H. Burns and A. Paget, for appellants.

C. H Mears, Prosecuting Attorney, and J. H. O'Neall, for the State.

OPINION

Elliott, J.

The appellants were adjudged guilty of contempt in disobeying an order of injunction issued by the trial court restraining them from interfering with the sheriff in the execution of a writ of ejectment. The injunction was issued to restrain them from interfering with the execution of the process issued in the ejectment case referred to in Hawkins v. State, 125 Ind. 570, 25 N.E. 818, and we need not here rehearse the facts stated in the opinion in that case, for it is sufficient to say that the contempt for which the appellants were punished consisted in their acts performed in disobedience of the order of injunction issued to aid the sheriff in giving McDougal, the plaintiff in the ejectment action, possession of the land.

The information upon which the attachment issued, as originally drawn, was entitled, "William F. McDougal and the State of Indiana v. Hiram L. Hawkins et al.," and it is urged that the information is vitiated by the addition of McDougal's name. As McDougal's name was subsequently withdrawn from the information, no substantial injury was done the appellants, even if it be conceded that if it had remained the information would have been ill. We are not, however, willing to decide that a plaintiff who is injured by the disobedience of a writ of injunction may not lodge information with the court and secure an attachment for contempt. Hawley v. Bennett, 4 Paige Ch. 163; Secor v. Singleton, 35 F. 376; Worcester v. Truman, 1 McLean, 483. But as that question is not directly presented we give no direct judgment upon it, contenting ourselves with adjudging that no substantial injury was done the appellants in this instance.

The entire information is not verified, the prosecution having adopted the singular and censurable course of verifying parts, only, of the pleading. This course seems to have been adopted in order to obtain the affidavits of persons who had knowledge of particular facts, but this supplies no valid excuse for departing from the rules of procedure, and introducing unnecessary confusion into the record. No direct attack, however, was made upon the information assigning for cause the insufficiency of the verification, and, as there was some verification, it can not be held that the question of its sufficiency is presented as the rules of procedure require. Where a party desires to object to the verification of a pleading in a case where it is not entirely unverified, he must specifically assign for cause the insufficiency of the verification.

There can be no doubt as to the right and power of a court of competent jurisdiction to punish, as for contempt, a party who disobeys an order of injunction embodied in a decree rendered after a hearing upon issue joined. Where the order of injunction...