Appeal
from Superior Court, Gates County; Bond, Judge.
T. J
Parker was adjudged to be in contempt of court for violation
of a restraining order, fined $100, and ordered to be
imprisoned for 15 days in the county jail, and he excepted
and appeals. Proceedings and judgment of the lower court
affirmed.
Motion
for rule upon respondent to show cause why he should not be
attached for contempt because of disobedience and the
obstruction of an order of the court issued by Judge Bond in
another case. The judge, upon the affidavits, found the
following facts:
"(1)
On the 23d day of August, 1918, a restraining order in a
cause pending to which the respondent, T. J. Parker, was
party defendant, was issued. A copy of said order is hereto
attached. Mr. Parker was present when the order was made by
the court, and was fully aware of its contents. That since
then the court finds the facts from the evidence to be that
the said Parker has willfully disobeyed the terms
commands, and spirit of the order which was lawfully issued
by the superior court.
"(2)
It further finds that he has offered willful resistance to
the lawful order and process of said court in that by
threats and display of weapons and in other ways he has
attempted to defeat the carrying out of the terms of said
order, with the terms of which he was entirely familiar.
"(3)
The court finds as a fact that the acts complained of in
the affidavit filed as a basis for this proceeding on the
part of said Parker were intended to and did defeat,
impair, and prejudice the rights and remedies of the
parties to said action, and prevented the parties named in
said restraining order from using the authority and right
to make changes in said fence and ditch in accordance with
the language of the said order.
"(4)
The court finds from the evidence in the cause that the
conduct of the said Parker has been an intentional defiance
of the lawful order of this court, and that he has
attempted by threats of violence and display of weapons,
and by threats as to what he would do, to defy and defeat
the lawful and proper order of this court.
"(5)
The rule to show cause why T. J. Parker
should not be attached for contempt was issued on December
10, 1918, and a copy was served on him on the same day. He
was ordered to appear before the court on December 11,
1918, at the courthouse of Gates county, and was furnished
with a copy of the original affidavit, and was given such
time as his counsel requested, until the latter could
return from a trip to Warren county, to have the hearing.
At the hearing he appeared in person and by counsel and
filed affidavits in the case.
"(6)
The court requested Solicitor Ehringhaus to appear in the
matter for the purpose of protecting the order of the
court, and designated him as the party upon whom any papers
may be served at the request of Parker.
"Upon
the foregoing finding of facts, it is adjudged, ordered and
decreed by the court that the respondent Parker is guilty
of contempt of this court, and that he be imprisoned in the
common jail of Gates county for a period of 15 days, and in
addition thereto that he pay a fine of $100, and the costs
of this proceeding to be taxed by the clerk."
As will
appear by reference to finding No. 3, the judge also found
the following additional facts, having held that the
statements in plaintiff's affidavit which he made the
basis of the ruling are true:
"The
highway commission hired Thos. Vaughan to go and move the
fence. Vaughan went to move the fence, and from a sense of
courtesy he went to the house of the defendant, Parker, and
told him he had come for that purpose. The defendant,
Parker, told said Vaughan that he had several sizes of shot
for the man who attempted to move the fence, and he
intended to shoot the first man who attempted to move that
fence; that Bond (meaning Judge Bond) had ordered it moved,
and if he wanted it moved let him come and move it himself;
that said Vaughan, not wishing to be killed or injured,
left the job and returned to Chairman Hale the material
which had been given him to enable him to do the work. The
said highway commission then went to W. J. Doughtie, known
friend to defendant, Parker, he having made an affidavit in
his interest in the hearing at Edenton, for the purpose of
employing him to do the work, having heard that defendant,
Parker, had said he was willing for Mr. Doughtie to move
it. Doughtie refused to have anything to do with moving the
fence. He stated to Chairman Hale that he had heard
defendant, Parker, say that he would shoot any man who went
there for the purpose of moving that fence. Chairman Hale
asked Doughtie if he understood Parker to be in earnest or
just jesting, to which Doughtie replied that he took him at
his word and did not want to undertake the job. The highway
commission then reported all these facts to their attorney
and asked to be advised. They were counseled to notify the
sheriff of the county, J. W. Brown, to meet the commission
at the place where the work was to be done on a fixed day
and hour; to have six other good citizens of the county
present; for the whole commission, every member, to go with
the laborers on that day to move the fence or take the
consequences. They went there on another occasion when the
sheriff was the first one to arrive. He found defendant,
Parker, at the place where the work was to be done with a
two-barrel shotgun, an axe, an da grubbing hoe. The sheriff
tried to reason with defendant, Parker, and persuade him to
leave. He refused, and told the sheriff that he intended to
shoot any man who came to do the work of moving that fence.
The sheriff drove on up the road to Eures station and met
the commissioners and others and reported what he had seen
and heard. The sheriff, desirous of preventing bloodshed,
suggested to the commissioners that he would precede them
and decoy defendant, Parker, if he could, into his
automobile, and take him away till the work could be done.
The sheriff executed this plan, and defendant, Parker, took
his shotgun and put it in the sheriff's car, and the
sheriff took him a considerable distance before returning.
The commissioners in the meantime, with their force, went
there and moved the fence. On the night preceding the
arranged day for moving the fence the defendant, Parker,
went to the home of Commissioner Sparkman and called him
out of his house, stated to him that he was informed that
it was the purpose of the commissioners to move the fence
the next day, and was told by Sparkman that that was true.
Defendant, Parker, then stated to Commissioner Sparkman
that, if he intended to go there and move the fence the
next day, he had better kiss his wife and babies good-bye,
for he was going to kill any man who went there to move
that fence. Commissioner Sparkman told defendant, Parker,
that he was going; that he had a message directing him to
go, to which defendant Parker replied: 'Well you had
better not go. I will shoot any man who puts his hands on
that fence to move it, and before it is moved you will have
to walk over my dead body.' The highway commissioners
have repeatedly tried to employ some one to cut out the
ditch along the part of the road where the fence was moved,
but everybody refuses, and stated that they were afraid of
defendant, Parker, and that they did not want any trouble
with him."
The
judge then adjudged the respondent to be in contempt, fined
him $100, and ordered him to be imprisoned for 15 days in the
common jail of the county.
Respondent
excepted and appealed.
R. C.
Bridger, of Winton, for appellant.
J. C.
B. Ehringhaus, of Elizabeth City, and A. P. Godwin, of
Gatesville, Attorney General Manning, and Assistant Attorney
General Nash, for respondent.
WALKER
J.
(after
stating the facts as above). [1-4] The
statute provides, among other things, that any person found
guilty of willful disobedience of any process or order
lawfully issued by any court or of resistance, willfully
offered, to the lawful order or process of any court, shall
be adjudged as having committed a contempt of the court, and
fined not exceeding $200, or imprisoned not exceeding 30
days, or both, in the discretion of the court. Revisal, §§
939 and 940. This is not a contempt committed within the
immediate presence or verge, of the court, and an appeal
therefore lies from the judgment below. Ex parte McCown, 139
N.C. 95, 51 S.E. 957, 2 L. R. A. (N. S.) 603; In re
Deaton,
105 N.C. 59, 11 S.E. 244; Cromartie v.
Commissioners, 85 N.C. 211: In re Daves, 81
N.C. 74; Ex parte Robbins, 63 N.C. 309. The findings of fact
by the judge are conclusive upon us when there is evidence to
support them, which is the case here (Ex parte McCown, supra;
Young v. Rollins, 90 N.C. 125), and are reviewable
only for the single purpose of passing upon the sufficiency
of the facts when there is competent evidence of the their
existence to warrant the judgment. Green v. Green,
130 N.C. 578, 41 S.E. 784. It has been held, though, that
when the facts are found by an inferior court, they may be
reviewed by the superior court. In re Deaton, supra;
State v. Aiken, 113 N.C. 653, 18 S.E. 690. When the...