In re John F. Hanson

• Decision Date: 09 October 1909
• Docket Number: 16,650
• Parties: In re JOHN F. HANSON, Petitioner
• Court: Kansas Supreme Court

105 P. 694

80 Kan. 783

In re JOHN F. HANSON, Petitioner

No. 16,650

Supreme Court of Kansas

October 9, 1909

Decided July, 1909.

Original proceeding in habeas corpus.

Petitioner remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTEMPT--Inherent Power of the Probate Court. Every probate court in this state is a court of record and has inherent power to punish summarily for contempt persons who in open court refuse to comply with its lawful orders or in any manner impede or embarrass the orderly transaction of its business, and this power exists independent of any statute.

2. CONTEMPT--Refusal of a Witness to Answer Questions. A person who is present in open court in the capacity of a witness, and refuses, when ordered by the court, to answer a pertinent question concerning the matter being investigated, is guilty of contempt for which he may be summarily fined.

3. CONTEMPT--Refusal to Pay Fine--Commitment. Where a witness is guilty of contempt and is fined under circumstances as above indicated, and refuses to pay the fine as ordered, he may be committed to jail, there to remain until such fine is paid and the question answered.

John F. Hanson, pro se.

Frank O. Johnson, for the respondent.

OPINION

GRAVES, J.:

This is an original proceeding for a writ of habeas corpus, prosecuted by John F. Hanson, who is confined in the jail of McPherson county upon a commitment issued by the probate court of that county for contempt. It appears that the petitioner was present in the probate court, where a trial was in progress between an administrator of an unsettled estate and persons holding claims against the estate which the administrator was contesting. The petitioner, who is an attorney, had been the adviser of the administrator of the estate, and had books and papers in his possession deemed to be important as evidence in the controversy before the court. In the course of the trial he was called as a witness, and after being duly affirmed was asked if he had any books or papers pertaining to the estate in his possession. He refused to answer. The court then adjudged him guilty of contempt and assessed a fine against him of $ 25, and ordered it to be paid at once, which the petitioner refused to do. The court then committed him to the custody of the sheriff until such fine should be paid and the answer made to the question propounded. The witness still refuses to answer the question or pay the fine.

The petitioner's claim for relief is based entirely upon the theory that the power of the court to punish for contempt is given by the statute, and that such power is exclusive. He further contends that the statute does not authorize commitment for non-payment of a fine assessed for contempt.

The brief is devoted to a discussion of the statute relating to contempts, and it is contended that the action of the probate court was not within such statute. In the view we have taken much of this discussion is immaterial, as we do not concur in the assumption that a probate court is without power to punish for contempt except as conferred by the statute. The probate court in this state is created and its jurisdiction fixed by section 8 of article 3 of the constitution, which reads:

"There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law."

It will be seen from this that a probate court in this state is a court of record and has jurisdiction of the estates of deceased persons. In the case of Howbert v. Heyle, 47 Kan. 58, 27 P. 116, this court said:

"It must be remembered that the probate court in this state is a court of record (Const., art. 3, § 8; Act relating to Probate Courts, § 1); and while it has jurisdiction only of particular classes of things, such as the care of the estates of deceased persons, minors, and persons of unsound mind, yet it has general jurisdiction of these things." (Page 65.)

This was repeated in the case of Higgins v. Reed, 48 Kan. 272, 280, 29 P. 389. In volume 9 of the Cyclopedia of Law and Procedure, at page 26, it is said:

"Independent of authority granted by statute, courts of record of superior jurisdiction, whether civil or criminal, possess inherent power to punish for contempt of court. Such power is essential to the due administration of justice, and the legislature can not take it away or abridge it, although it may regulate its use. Statutes conferring the power are simply declaratory of the common law."

In volume 7 of the American and English Encyclopaedia of Law, at page 33, it is said:

"When, however, the court is a creature of the constitution, the better opinion seems to be that it can not, by legislative enactment, be shorn of its inherent right to punish for contempts; nor can the legislature abridge that right, although it may regulate its exercise. The constitution may confer on the legislature the power to abridge the right of courts created by the constitution to punish for contempts, but in only a very few states of the Union has that been done."

In the case of In re Millington, Petitioner, &c., 24 Kan. 214, this court said:

"Courts of record have an inherent power to punish for disorderly conduct in the court-room, resistance of their process, or any other interference with their proceedings which amounts to actual contempt." (Syllabus.)

(See, also, The State v. Thomas, 74 Kan. 360, 365, 86 P. 499.)

The syllabus to the case of State, ex rel. Phelps and Baker, v. Judge, 45 La. Ann. 1250, 14 So. 310, in 40 Am. St. Rep. 282, reads:

"The power to punish for contempts, actual or constructive, is inherent in all courts of record, and is essential to the preservation of order in all judicial proceedings."

In the case of In re Shortridge, 99 Cal. 526, 34 P. 227, the court said:

"No authority...