Herdman v. State

CourtSupreme Court of Nebraska
Writing for the CourtHARRISON
Citation54 Neb. 626,74 N.W. 1097
PartiesHERDMAN v. STATE.
Decision Date21 April 1898

54 Neb. 626
74 N.W. 1097

HERDMAN
v.
STATE.

Supreme Court of Nebraska.

April 21, 1898.



Syllabus by the Court.

[74 N.W. 1097]

1. A proceeding against a party for contempt is in the nature of a prosecution for a crime, and the rules of strict construction applicable in criminal proceedings are governable therein.

2. The affidavit must state the acts of the asserted contempt with as much certainty as is required in a statement of an offense in a prosecution for a crime.

3. The statements must be as of the personal knowledge of the affiant; they may not be on information and belief.

4. The affidavit in such a proceeding is jurisdictional.


Error to district court, Douglas county; Scott, Judge.

Lee Herdman was adjudged guilty of contempt of court, and brings error. Reversed.

[74 N.W. 1098]

Guy R. C. Read and Wm. F. Gurley, for plaintiff in error.

The Attorney General, for the State.


HARRISON, C. J.

By a petition in error, a review is sought of a judgment of the district court of Douglas county whereby the plaintiff in error was adjudged guilty of a contempt of court, and to be punished therefor. The affidavit filed in the district court (the basis of the proceedings there) was as follows:

“William W. Cox, Plaintiff, v. Board of Fire & Police Commissioners, Frank E. Moores, et al., Defendants. Doc. 60, No. 313. State of Nebraska, Douglas County--ss.: R. H. Olmsted, being duly sworn, deposes and says he is one of the attorneys for the plaintiff in the above-entitled action, and comes now and represents to the court that the restraining order issued herein on July 16th, 1897, has been violated by the defendant R. E. L. Herdman, in this, to wit: That on September 29th, 1897, the said Herdman, as a member of the board of fire and police commissioners of the city of Omaha, Neb., did, as affiant is informed and believes, vote ‘Yes' at a meeting of said board on a resolution then adopted by said board removing plaintiff herein from the police department of the city of Omaha; that thereafter, on the 1st day of October, 1897, at a special meeting of said board, the following proceedings were had, and the following is a copy of the journal of said board showing a record of the proceedings then and there had: ‘Omaha, Neb., October 1st, 1897. The board met pursuant to call. Present: Commissioner Gregory in the chair, and Commissioners Peabody, Bullard, and Herdman. Absent: Commissioner Moores. The secretary presented a communication from the chief of police addressed to Hon. C. R. Scott, with the reply of his honor thereto attached, and reading as follows: “Hon. C. R. Scott, Judge District Court, Omaha, Neb.--Dear Sir: I have the honor to inclose herewith a resolution adopted by the board of fire and police commissioners at the meeting of that body held last night. It was the sense of...

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24 practice notes
  • Robertson v. State, 6 Div. 643
    • United States
    • Alabama Court of Appeals
    • December 16, 1924
    ...9 L.R.A. 569; Young v. Cannon, 2 Utah, 560; Batchelder v. Moore, 42 Cal. 412; Ludden v. State, 31 Neb. 429, 48 N.W. 61; Herdman v. State, 54 Neb. 626, 74 N.W. 1097; State ex rel. Harvey v. Newton, 16 N.D. 151, 112 N.W. 52, 14 Ann.Cas. 1035; State ex rel. Harvey v. Davies, 16 N.D. 106, 112 N......
  • State ex rel. Pulitzer Pub. Co. v. Coleman, No. 37053.
    • United States
    • Missouri Supreme Court
    • June 10, 1941
    ...State ex rel. Mineral State Coal Co. v. Komar, 113 W. Va. 526, 168 S.E. 810; Wright v. Wright, 132 Neb. 619, 272 N.W. 568; Back v. State, 54 Neb. 626, 106 N.W. 787; Morgan v. Natl. Bank of Commerce, 90 Okla. 280, 217 Pac. 388; Ex parte Pease, 123 Tex. Cr. 43, 57 S.W. (2d) 575; In re Schuler......
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...the material allegations to be made of personal knowledge." 9 Cyc. p. 39; In re Wood, 82 Mich. 75, 45 N. W. 1113; Herdman v. State, 54 Neb. 626, 74 N. W. 1097; Ludden v. State, 31 Neb. 429, 48 N. W. 61; Sargent v. Warren, 22 N. Y. Wkly. Dig. 473; State v. Conn., 37 Or. 596, 62 Pac. 289; Fre......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...48 N.W. 61, the text is sustained, where the affidavit was filed by one not a public prosecutor; and the same is true of Herdman v. State, 54 Neb. 626, 74 N.W. 1097. The same is true of Belangee v. State, 97 Neb. 184, 149 N.W. 415, but in the last case three judges out of seven dissented, a......
  • Request a trial to view additional results
25 cases
  • Robertson v. State, 6 Div. 643
    • United States
    • Alabama Court of Appeals
    • December 16, 1924
    ...9 L.R.A. 569; Young v. Cannon, 2 Utah, 560; Batchelder v. Moore, 42 Cal. 412; Ludden v. State, 31 Neb. 429, 48 N.W. 61; Herdman v. State, 54 Neb. 626, 74 N.W. 1097; State ex rel. Harvey v. Newton, 16 N.D. 151, 112 N.W. 52, 14 Ann.Cas. 1035; State ex rel. Harvey v. Davies, 16 N.D. 106, 112 N......
  • State ex rel. Pulitzer Pub. Co. v. Coleman, No. 37053.
    • United States
    • Missouri Supreme Court
    • June 10, 1941
    ...State ex rel. Mineral State Coal Co. v. Komar, 113 W. Va. 526, 168 S.E. 810; Wright v. Wright, 132 Neb. 619, 272 N.W. 568; Back v. State, 54 Neb. 626, 106 N.W. 787; Morgan v. Natl. Bank of Commerce, 90 Okla. 280, 217 Pac. 388; Ex parte Pease, 123 Tex. Cr. 43, 57 S.W. (2d) 575; In re Schuler......
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...the material allegations to be made of personal knowledge." 9 Cyc. p. 39; In re Wood, 82 Mich. 75, 45 N. W. 1113; Herdman v. State, 54 Neb. 626, 74 N. W. 1097; Ludden v. State, 31 Neb. 429, 48 N. W. 61; Sargent v. Warren, 22 N. Y. Wkly. Dig. 473; State v. Conn., 37 Or. 596, 62 Pac. 289; Fre......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...48 N.W. 61, the text is sustained, where the affidavit was filed by one not a public prosecutor; and the same is true of Herdman v. State, 54 Neb. 626, 74 N.W. 1097. The same is true of Belangee v. State, 97 Neb. 184, 149 N.W. 415, but in the last case three judges out of seven dissented, a......
  • Request a trial to view additional results

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