In re S. O. Sharp
| Decision Date | 08 June 1912 |
| Docket Number | 18,193 |
| Citation | 124 P. 532,87 Kan. 504 |
| Parties | In re S. O. SHARP, Petitioner |
| Court | Kansas Supreme Court |
Decided January, 1912.
Original proceeding in habeas corpus.
Writ allowed.
SYLLABUS BY THE COURT.
1. HABEAS CORPUS -- Injunction--Contempt--No Action Begun--No Jurisdiction. A court or judge has no jurisdiction to grant a temporary injunction until the beginning of a proper action in which such order may be had.
2. HABEAS CORPUS -- Same. In this case the order that the petitioner "be and he hereby is restrained and enjoined from in any way interfering with the said plaintiff . . . until the final determination of this action" should have been accompanied or preceded by the issuance of a summons.
3. HABEAS CORPUS -- Same. Such an order made on presentation of an application and affidavit therefor when no action has been begun and several days before such application is filed--no summons being issued or praecipe therefor filed and no voluntary appearance being made--is void.
John Hartzler, for the petitioner.
Frank J. Horton, for the respondent.
April 22, 1912, the petitioner filed in this court his application for a writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty by Martin T. Wilson, sheriff of Sherman county, and that so far as the applicant knew such sheriff based his authority on a pretended bench warrant grounded upon certain proceedings had in the district court of Sherman county consisting of an application for an injunction, an order or temporary injunction and service thereof, an accusation of contempt by violating such order, the bench warrant issued thereon being followed by an apprehension and order of commitment to the county jail. He alleged that no summons was ever issued in the cause, that no petition was filed therein, that the court and judge were without jurisdiction, that any pretended warrant, order or process was null and void, that he never entered voluntary appearance nor authorized any one to appear for him, and that no injunction bond was filed.
Instead of a return by the respondent as the statute requires we find a so-called answer by counsel for the school district, denying the restraint and referring to the record in certain cases in the district court. A transcript of the record in case No. 2364 shows that on December 4, 1911, the officers of school district No. 9 filed an application for an injunction setting up that the petitioner had contracted to build a schoolhouse for the district for an agreed price, part of which had been paid, and had failed to complete the same according to the contract and refused to allow the district to take possession of the property, and had threatened them with violence if they should undertake to do so; that the district was unable to make settlement with him because he would not comply with the terms of the contract; and praying that he be enjoined from interfering with the district in entering upon the premises, taking possession of the schoolhouse and conducting a school therein, and for such other and further relief as the court might deem equitable and just. This was accompanied by an affidavit of the director of the district. The judge made an order that Sharp "be and he hereby is restrained and enjoined from in any way interfering with the said plaintiff . . . until the final determination of this action," reciting that the cause came on to be heard upon the application for an injunction. The sheriff made a return of December 4, also of December 13, that he could not find S. O. Sharp in his county, but receiving it again on the 13th of December served the same on the 15th personally. On February 16, 1912, there was filed an affidavit of the director of the district to the effect that the petitioner had ever since the 15th of December, 1911, been in open, flagrant and willful disobedience of the order of injunction and praying his arrest. On the same day another affidavit of the same purport made by the same person was filed. April 3, 1912, the issuance of a bench warrant was ordered and the warrant itself was issued on which the petitioner was apprehended on April 5.
April 6 a hearing was begun and on April 8 it was concluded. The petitioner was found guilty of contempt and ordered to yield possession of the schoolhouse and refrain from interfering with its use by the school district and to give bond in the penal sum of $ 200 to secure his obedience, in default of which he was ordered committed to jail, the time being extended on motion of the petitioner until April 17 for giving the bond, the order further providing that if such bond were not then given a bench warrant should issue for the petitioner's arrest and that he be thereupon confined in jail until he should have complied with the order and have given the bond. April 18 a bench warrant was issued, and executed the same day by apprehending the petitioner and placing him in jail.
It is asserted by counsel for the petitioner that the service of December 15 was made outside the county of Sherman, but we have nothing by way of record or admission to support the claim and hence can not consider it as established, whether material or not.
From the array of files and records supplied it appears that the plaintiff school district filed in the court below no regular petition, but an application setting up grounds and praying for an injunction until the further orders of the court and for general relief. This was presented to the judge on December 2 and filed with the clerk December 6 according to the original file mark and on December 4 according to the transcript. No summons was issued, no praecipe therefor was filed, no bond was given, and the order of injunction was made at least two and probably four days before anything bearing the semblance of a petition was filed or any action begun, and there was no appearance. True, the order was upon the third attempt served, but it was a mere order standing alone...
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