Hawthorne v. State

• Decision Date: 01 October 1895
• Docket Number: 6065
• Citation: 64 N.W. 359,45 Neb. 871
• Parties: JAMES D. HAWTHORNE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

64 N.W. 359

45 Neb. 871

JAMES D. HAWTHORNE v. STATE OF NEBRASKA

No. 6065

Supreme Court of Nebraska

October 1, 1895

ERROR to the district court for Buffalo county. Tried below before HOLCOMB, J.

REVERSED.

Marston & Nevius, for plaintiff in error.

Calkins & Pratt, contra.

OPINION

NORVAL, C. J.

This was a proceeding for contempt of court instituted in the county court of Buffalo county, resulting in the conviction and sentence of the plaintiff in error. The district court, on a review of the proceedings, affirmed the judgment, and the cause was removed to this court by petition in error.

The affidavit of Warren Pratt, as the basis of the proceeding alleges that on the 19th day of November, 1890, in an action pending in the county court of Buffalo county, wherein the Rockford Silver Plate Company was plaintiff and the said James D. Hawthorne was defendant, the said county court entered the following order: "Now on this day, in open court, the parties present by their respective attorneys, upon mature consideration of all the evidence, and being fully advised in the premises, it is ordered, considered, and adjudged by me that the said J. D. Hawthorne apply so much of the money shown by his examination as in his possession as may be necessary to the satisfaction of the judgment heretofore obtained in the county court of Buffalo county, Nebraska, by the Rockford Silver Plate Company against said J. D. Hawthorne in the sum of $ 108.11, with interest at seven per cent from May 15, 1889, which said judgment was duly transcripted and is now on file in the office of the clerk of the district court of said county; and that he pay the costs of this proceeding, taxed at . Sheriff's fees, 85 cents; stenographer's fees, $ 10; and court fees, ." The affidavit further alleges, in effect, that the said Hawthorne prosecuted error from this order to the district court, where the same was affirmed, and the clerk of said last named court, in accordance with said judgment of affirmance, certified the decision to the county court that its order might be enforced; that a certified copy of the order of the county court and the affirmance thereof by the district court were duly served upon said Hawthorne, yet he has disregarded the order of said court by refusing to comply therewith, and still refuses to pay said money into said court as required thereby. To the affidavit or information, the plaintiff in error filed the following answer, to-wit: "That he admits all the allegations and orders set forth in the said information, but asserts his utter inability to comply with the order of the court with reference to the payment of the sum of money named in said information; that at the time his testimony was taken, upon which the said order was made, he was wholly mistaken as to the amount of money in his hands, or belonging to him; that in truth and in fact the amount which he stated at that time to be within his control, to-wit, from $ 180 to $ 200, was not in money, but was in outstanding bills due to him for labor done at his bench, but which he expected would be paid as money on demand; that had such payments been made he would have been able to comply with the said order of court, but they were not made, and are still outstanding and many of them not collectible; that there has been no time since the entry of said order in which he has been able to comply therewith; that he is the head of a family, residing with the same in said county, and has no means of supporting himself and family, except by his own personal labor, and that it now takes, and has taken since said order was entered, all his earnings to support himself and family; that he disclaims all intention on his part either to disregard or disobey the order of this court, and has not complied with said order for the reason that he is wholly unable to do so. He therefore asks to be discharged from the alleged contempt of court in not complying with said order. The state filed a general demurrer to the answer, which the county court sustained, and entered an order adjudging the plaintiff in error guilty of contempt of court as charged, and that he stand committed to the jail of the county until he comply with the order of the court which he had disobeyed. The demurrer is predicated upon the single ground that the facts set up in the answer are insufficient to excuse him from complying with the order of the county court. It is a familiar rule of pleading that on demurrer the court must consider the entire record, and judgment must go against the party whose pleading was first defective in substance. (Bennet v. Hargus, 1 Neb. 419; Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039; Oakley v. Valley County, 40 Neb. 900, 59 N.W. 368.)

The first question, therefore, presented for consideration is, does the information, or affidavit, state sufficient facts to constitute a contempt over which the county court had jurisdiction? It is a firmly established doctrine that in, a proceeding to punish for an alleged contempt not committed in the presence of the court, the affidavit on which the proceeding is based is jurisdictional and all the facts showing that the case is one over which the court has jurisdiction must be affirmatively disclosed by the affidavit. (Gandy v. State, 13 Neb. 445, 14 N.W. 143; Ludden v. State, 31 Neb. 429, 48 N.W. 61.) As was said by Wallace, J., in Batchelder v. Moore, 42 Cal. 412: "The power of a court to punish for an alleged contempt of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to be upheld, except under the circumstances and the manner prescribed by law. It is essential to the validity of proceedings in contempt, subjecting a party to a fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized, for mere presumptions and intendments are not to be indulged in...