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. Par-ker 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 bearing he appeared in person and by counsel and tiled 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 bad 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 wishin;; 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 bis 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 Spark-man 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 910. 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 Dea-ton, 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 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...
