In re Markuson

• Decision Date: 06 November 1895
• Citation: 5 N.D. 180,64 N.W. 939
• Parties: In re MARKUSON.
• Court: North Dakota Supreme Court

5 N.D. 180

64 N.W. 939

In re MARKUSON.

Supreme Court of North Dakota.

Nov. 6, 1895.

Syllabus by the Court.

On June 29, 1895, petitioner was convicted of a criminal contempt of court, and judgment was entered of record against him in substance as follows: “That petitioner be imprisoned in the county jail of Barnes county for a period of ninety days, commencing with to-day at noon; that he pay a fine of $200, and if default be made in the payment of the fine he shall be imprisoned as many days as two dollars is contained in two hundred dollars,-or one hundred days.” Immediately after said judgment was entered the court, of its own motion, made certain orders in the case, which were entered of record, to the effect: First, that in case an appeal was taken the time should commence to run from the date of the remittitur being filed in the district court. Second, that the judgment be suspended 30 days, unconditionally, to facilitate an appeal to the supreme court. Third, the court ordered that the bail bond given to secure the petitioner's attendance from day to day during the trial in the district court be and remain valid and binding upon the petitioner, and that petitioner was ordered to obey the further orders of the district court, whether made by that court, or made to conform to orders of the supreme court. Held, that the time of said imprisonment began to run at noon on June 29, 1895, and that the several orders purporting to suspend or postpone the operation of the judgment were without authority of law, and null and void; that said orders did not operate as a stay or supersedeas, for reasons stated in the opinion of the court.

Original application by Norman Markuson for discharge from custody on writ of habeas corpus. Granted.Crum & Hanson and G. K. Andrus, for petitioner. Herman Winterer, State's Atty., for respondent.

WALLIN, C. J.

On June 29, 1895, petitioner, with others, was convicted of a contempt of court, in violating the terms of an injunctional order issued out of the district court for the county of Barnes, under section 13 of the act of 1890, known as the “Prohibition Law.” At the close of the testimony, and after the court had announced that it would find the accused guilty of the contempt charged, and before judgment was pronounced, counsel for the defendants gave notice in open court that they would remove the cases to the supreme court for review, and requested sufficient time in which a bill of exceptions could be settled, and the record obtained from the official stenographer. There seems to have been no response whatever on the part of the court to this request of counsel. The record shows that the trial court, immediately after such request was made, proceeded to pronounce and enter of record a final judgment in the cases, and followed said final judgment with certain orders. The judgment and orders, as entered, are as follows: “The judgment of the court in each case is that the defendants shall be imprisoned in the county jail of Barnes county for a period of ninety days, commencing with to-day at noon, and that each pay a fine of $200; and if default be made in the payment of the fine he shall be imprisoned for as many days as two dollars is contained in two hundred dollars, or one hundred days. It is further ordered that in case an appeal be taken that the time shall commence to run from the date of the remittitur or judgment of the supreme court being filed in this court. It is further ordered that judgment in each of these several cases be suspended for a period of thirty days, for the purpose of allowing each of the several defendants to take an appeal to the supreme court, and that these sentences shall commence at the expiration of the said thirty days from date. It is further ordered that the bonds already given in these cases by the several defendants be and remain valid and binding upon the defendants. The defendants are each ordered to obey the further orders of this court in respect to said punishments and fines, and to obey the further judgment and all orders and judgments rendered by the supreme court in these several cases, which shall hereafter be made judgments in this court in pursuance of the judgments of the supreme court. And it was further stiplated in open court, by and between the above-named defendants and the attorneys for the state, that the record should be made up in one case, and that the other three cases should abide the event of that one case.” Petitioner sued out a writ of error, and his case was brought to this court for review. In this court no error was assigned upon the judgment entered in the court below, nor was the attention of this court called in any manner to the terms of said judgment, or to the orders following the judgment. State v. Markuson (N. D.) 64 N. W. 934. The conviction having been affirmed in this court, the remittitur was sent down and filed in the district court of Barnes county on the 31st of October, 1895; whereupon the said district court, on motion of the state's attorney, ordered and directed that the petitioner be imprisoned for 90 days from and after the date last stated, and that he pay the fine originally imposed, or in default of payment that he should be imprisoned as stated in the sentence entered of record on June 29th. Upon such order being entered of record a commitment thereon was issued out of the district court, and delivered to the sheriff for service, and under said commitment the sheriff took said Markuson into custody, and now brings him before this court as a prisoner, pursuant to a writ of habeas corpus issued out of this court on November 2, 1895. Petitioner had never been imprisoned or taken into custody, pursuant to said judgment of June 29, 1895, at any time prior to said arrest under the warrant issued upon the order of court made October 31, 1895, as above stated. Upon such arrest petitioner paid to the clerk of the district court for Barnes county a portion of said fine of $200, but deducted therefrom $2 for each day which had elapsed after the expiration of 90 days from said June 29th. This deduction was made on the theory that the petitioner was constructively in jail for nonpayment of fine at all times after the original period of 90 days had run, and until he was taken into custody as above stated.

The question presented upon the sheriff's return in this proceeding is whether the petitioner can be imprisoned and punished in accordance with the original sentence, and the order made thereon by the district court on October 31, 1895. Counsel for petitioner contends that the judgment rendered on June 29th has lapsed, and by its terms, and by the payment of a portion of the fine imposed, as hereinbefore explained, has ceased to be operative. A solution of the question presented makes it necessary to consider the terms of the judgment entered on June 29th, and the orders immediately following the judgment. The language of the judgment is plain...