Herdman v. State

• Citation: 54 Neb. 626,74 N.W. 1097
• Parties: HERDMAN v. STATE.
• Decision Date: 21 April 1898
• Court: Supreme Court of Nebraska

54 Neb. 626

74 N.W. 1097

HERDMAN

v.STATE.

Supreme Court of Nebraska.

April 21, 1898.

Syllabus by the Court.

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.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 the board and also my personal opinion that, in so far as the said resolution affected Chief of Detectives W. W. Cox, your attention should be called to it, as the board and myself desire to be guided by both the letter and spirit of the restraining order made by your honor in the matter of W. W. Cox v. The Board of Fire and Police Commissioners. I am sure that the form of my communication to your honor is strictly in accordance with legal practice in such cases; but I simply seek to convey to your honor the meaning and intention of the board touching the matters mentioned herein, and we would be glad to be guided by such advice and instructions as you may deem consistent to give in the premises. Very respectfully yours, C. V. Gallagher, Chief of Police.” Reply: “Chief Gallagher: You are notified that the action of the board of fire and police commissioners respecting the discharge of Chief of Detectives Cox in discharging him from the service is in direct conflict with the restraining order issued by me, and should be rescinded at once. Until the case is heard, no such action should be taken by the board. [Signed] Cunningham R. Scott, Judge. Omaha, Sept. 30, 1897.” On motion, the communications were ordered spread upon the record, and placed on file, and the following resolution was passed, Commissioners Peabody, Gregory, and Bullard voting in the affirmative, Commissioner Herdman in the negative: “Resolved, that the order removing certain officers and patrolmen passed Sept. 29th be, and is hereby, modified in so far as it relates to one W. W. Cox; and it is ordered that as to him the said order be, and is hereby,...