Hawthorne v. State

CourtSupreme Court of Nebraska
Writing for the CourtNORVAL
Citation64 N.W. 359,45 Neb. 871
Decision Date01 October 1895
PartiesHAWTHORNE v. STATE.

45 Neb. 871
64 N.W. 359

HAWTHORNE
v.
STATE.

Supreme Court of Nebraska.

Oct. 1, 1895.



Syllabus by the Court.

1. A demurrer searches the entire record, and judgment should go against the party whose pleading was first defective in substance. Hower v. Aultman, Miller & Co., 42 N. W. 1039, 27 Neb. 251;Oakley v. Valley Co., 59 N. W. 368, 40 Neb. 900, followed.

2. In a proceeding to punish for an alleged contempt, not committed in the presence of the court, the affidavit upon which the proceeding is based is jurisdictional, and it must affirmatively disclose sufficient facts to show that the case is one over which the court has jurisdiction.

3. Unless the disobedience of an order of court is willful, there is no contempt.

4. A defendant in a civil action, who has failed to comply with an order of court directing the payment by him of a certain sum of money to apply on a judgment recovered therein against him, is not liable to punishment as for contempt in refusing to comply with such order, where such disobedience was not willful, but was solely on account of his being insolvent, and wholly unable to pay the amount in the order required.


Error to district court, Buffalo county; Holcomb, Judge.

Complaint by the state of Nebraska against James D. Hawthorne for contempt. Judgment of guilty, and defendant brings error. Reversed.

[64 N.W. 359]

Marston & Nevius, for plaintiff in error.

Calkins & Pratt and A. S. Churchill, Atty. Gen., for the State.


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

[64 N.W. 360]

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 proceedings, 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 Co. 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 orders 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. But there...

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31 practice notes
  • Hay v. Hay
    • United States
    • United States State Supreme Court of Idaho
    • December 31, 1924
    ...the court acquires jurisdiction. (Harkness v. Hyde, 31 Idaho 784, 176 P. 885; State v. Conn, 37 Ore. 596, 62 P. 289; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359; 13 C. J., pp. 64, 65, par. 89.) The fact that a person does not do something the court has ordered him to do is not contempt unl......
  • State ex rel. Wheeler v. Stuht, 9240
    • United States
    • Supreme Court of Nebraska
    • June 26, 1897
    ...[52 Neb. 224] (Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039; Oakley v. Valley County, 40 Neb. 900, 59 N.W. 368; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359.) In the main the arguments on the proposition that the act of 1897 is void for being special legislation, and for that reason inimical......
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...v. Rose, 38 Mo. 390; Herdman v. State, 54 Neb. 626, 74 N. W. 1097; Le Hane v. State, 48 Neb. 105, 66 N. W. 1017; Hawthorne v. State, 45 Neb. 871, 64 N. W. 359; Phillips v. Welch, 12 Nev. 158; Bradbury v. Bliss, 23 App. Div. 606, 48 N. Y. Supp. 912; People v. Adams, 6 Hill (N. Y.) 236; State......
  • State ex rel. Broatch v. Moores, 9249
    • United States
    • Supreme Court of Nebraska
    • December 9, 1897
    ...was first defective in substance. (Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039; Oakley v. Valley County, 40 Neb. 900; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359; West Point Water-Power & Land Improvement Co. v. State, 49 Neb. 223, 68 N.W. 507.) Under and by virtue of section 11, chapter 1......
  • Request a trial to view additional results
31 cases
  • Hay v. Hay
    • United States
    • United States State Supreme Court of Idaho
    • December 31, 1924
    ...the court acquires jurisdiction. (Harkness v. Hyde, 31 Idaho 784, 176 P. 885; State v. Conn, 37 Ore. 596, 62 P. 289; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359; 13 C. J., pp. 64, 65, par. 89.) The fact that a person does not do something the court has ordered him to do is not contempt unl......
  • State ex rel. Wheeler v. Stuht, 9240
    • United States
    • Supreme Court of Nebraska
    • June 26, 1897
    ...[52 Neb. 224] (Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039; Oakley v. Valley County, 40 Neb. 900, 59 N.W. 368; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359.) In the main the arguments on the proposition that the act of 1897 is void for being special legislation, and for that reason inimical......
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...v. Rose, 38 Mo. 390; Herdman v. State, 54 Neb. 626, 74 N. W. 1097; Le Hane v. State, 48 Neb. 105, 66 N. W. 1017; Hawthorne v. State, 45 Neb. 871, 64 N. W. 359; Phillips v. Welch, 12 Nev. 158; Bradbury v. Bliss, 23 App. Div. 606, 48 N. Y. Supp. 912; People v. Adams, 6 Hill (N. Y.) 236; State......
  • State ex rel. Broatch v. Moores, 9249
    • United States
    • Supreme Court of Nebraska
    • December 9, 1897
    ...was first defective in substance. (Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039; Oakley v. Valley County, 40 Neb. 900; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359; West Point Water-Power & Land Improvement Co. v. State, 49 Neb. 223, 68 N.W. 507.) Under and by virtue of section 11, chapter 1......
  • Request a trial to view additional results

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