James v. Smith

Decision Date31 July 1870
Citation2 S.C. 183
CourtSouth Carolina Supreme Court


The Circuit Court of Common Pleas has no jurisdiction, upon a mere rule to shew cause, to attach a Sheriff for contempt in failing to execute a warrant, issued by a Magistrate in a civil proceeding, directed to the Sheriff, and legally in his hands for execution.

Where the Circuit Court attaches a Sheriff for contempt in a proceeding in which that Court had no jurisdiction, the Sheriff may be discharged under habeas corpus by a Justice of the Supreme Court.

A co-ordinate tribunal may not disregard, much less set aside, the judgment of another Court, for mere errors of judgment or irregularities of procedure; but where the Court is without jurisdiction its judgment is void, and must be so held whenever it comes before another Court.


Appeal from an order directing an attachment for contempt to issue against the Sheriff.

The facts were these: Under the Act of 1866, entitled “An Act to amend the law in relation to tenancies,” (13 Stat., 416,) W. E. James and J. J. James instituted proceedings, in January, 1870, before a Magistrate of Darlington County, against Jack Smith and Adam Bristow, and on the 24th January, 1870, the Magistrate issued a warrant, under his hand and seal, directed to Thomas C. Cox, Esq., Sheriff of said County, commanding him to eject Smith and Bristow, “and all and every other person whatsoever, in possession of the premises, and deliver” to W. E. James and J. J. James full possession of the same.

The warrant was lodged with the Sheriff, and he having failed to execute it, the plaintiffs therein applied to, and obtained from, the Court of Common Pleas, for Darlington County, a rule on the Sheriff to shew cause why he should not be attached for a contempt, because of his failure to execute the warrant according to its exigency.

The Sheriff answered the rule, and for cause submitted, inter alia, that the plaintiffs “have no right to procure an attachment against him for contempt of Court for failing to execute the process of another and inferior jurisdiction.”

His Honor overruled the return, and ordered “that the rule be made absolute, and that the said Thomas C. Cox, Sheriff as aforesaid, do proceed forthwith to execute the said warrant according to its exigency, and that, upon his failure so to do, on or before the 18th day of July instant, he be fined in the sum, & c., and be imprisoned, &c., till he purge his contempt; and that a writ of attachment do issue to enforce the provisions of this order.”

Thomas C. Cox appealed on the ground, inter alia, that his Honor the presiding Judge had no right to entertain a rule against the Sheriff for failing or refusing to execute the process of an inferior tribunal, or any tribunal except his own Court.

Pending the appeal, the plaintiffs issued an attachment under the order, and Cox was arrested thereunder. He applied to the Chief Justice, at his Chambers, at Sumter, for a writ of habeas corpus, which was granted, and on a return thereto being made he moved for his discharge. At the first hearing, His Honor the Chief Justice overruled the motion for a discharge, but on a rehearing he granted it, and filed an opinion and order, dated the 27th August, as follows:


This second application on the part of the petitioner enables me to correct an error which, I now think, I committed in my decision rendered, ore tenus, immediately after the close of the first argument. If I am right in the conclusion which I have reached, I do not regret the opportunity to reform my judgment, according to my present conviction, after some consideration and reflection.

The return to the writ recites the whole proceeding which resulted in the imposition of the fine and the imprisonment of the petitioner. All the facts on which the order made by the Circuit Judge is founded are incorporated into the writ of attachment, by virtue of which the party is held under arrest.

It, therefore, appears that the writ issued for a supposed contempt on the part of the petitioner, who is the Sheriff of Darlington County, “because of his failure to execute a warrant of ejectment, issued (in the case therein stated) by E. W. Lloyd, Esq., Magistrate, and lodged with the said Sheriff, according to its exigency.”

The Sheriff is the ministerial officer of the Circuit Court, bound to enforce all its orders, mandates and judgments in matters properly cognizable by it as a superior Court. If it has a general jurisdiction over the subject, its conclusion, even if erroneous, is binding until reversed by appellate authority.

Its decision, while it stands, must be accepted as effectual as if pronounced by a Court of the last resort. If a Sheriff, therefore, assumed, in a case thus arising, to question the validity of the order or precept which he is required to execute, and refrained from enforcing it, he would, without doubt, be liable to a rule, and, under it, to such punishment, by fine and imprisonment, as the Judge might see fit to impose for the contempt.

It is necessary, therefore, to consider whether, by virtue of the official relation of the Sheriff to the Circuit Court of his County, he is liable to answer to it as for a contempt in not obeying the precept of a Magistrate's Court, which, in conformity to law, may be directed to him, without in any way bringing to its review and revision the proceedings of the said Court on which it was founded, save by the rule to shew cause why an attachment should not issue.

It is not pretended that the Circuit Court, though a Court of Record with the general jurisdiction which pertains to tribunals of that character, has such right at Common Law. The exercise of the power is claimed by force of the 10th and 20th Sections of the “Sheriff's Act of 1839,” (11 Stat. at Large, 28, 30,) which are as follows:

Sec. 10. The Sheriff, or his regular deputy, shall serve, execute and return every process, rule, order or notice issued by any Court of Record in this State, or by other competent authority; and, if the Sheriff shall make default herein, he shall be subject to rule and attachment as for a contempt, and he shall also be liable to the party injured in a civil action.”

Sec. 20. Any Sheriff shall be liable to be proceeded against in any Court of Record in this State for a contempt for misconduct or malpractice in presence of the Court, or for neglect of duty; in the former case, he shall be liable to be attached forthwith, and, in the latter case, a rule shall issue against him, requiring him to shew cause why he ought not to be attached: Provided, in all cases, interrogatories may be propounded,” &c.

Are these Sections to be so construed as to extend their provisions to contempts alleged to be committed, either by neglect in executing the process of a Magistrate's Court, or by willful default in obeying it? or, in other words, do they do more than express and declare the power which the said Court already had in the matter of contempts by its officers? The 10th Section only recites obligations which already attached on the Sheriff, and sets forth the mode of his punishment, which in no way differs from that which was before prescribed by law. The 20th Section provides for procedure against him, “in any Court of Record, for a contempt, for misconduct or malpractice in presence of the Court, or for neglect of duty.” In the former case he is made liable to attachment forthwith, and in the latter he is first to shew cause. If the Sheriff, by this Section, is to be held amenable to attachment by the Circuit Court for a contempt of a Magistrate's Court, “for misconduct or malpractice in its presence,” and, as the last named Court possesses the identical power, it might follow, that the Circuit Court could take notice of a matter as a contempt in the inferior Court, which that Court did not so consider. If the words can be construed as extending to any Court of Record jurisdiction over contempts in another Court, the consequence would be, that the Circuit Court would notice a contempt of the Court of Probate, or either of them notice a contempt committed against the Supreme Court. The mere reference to this anomalous result, which is the legitimate inference from the argument, shows that the construction contended for cannot prevail.

The Section never contemplated that one Court should judge and determine in a contempt charged to have been committed against another. It would be an extra judicial proceeding, and where it is claimed, the authority must be shown by positive direction.

The purpose of the Act referred to was to bring together, in as convenient and concise form as possible, the duties, rights and liabilities of Sheriffs, as the Legislature also did in regard to Magistrates, Clerks, Ordinaries, Commissioners and Coroners, that these officers might have the opportunity of readily informing themselves of the duties exacted of them,...

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9 cases
  • Hunter v. Ruff
    • United States
    • United States State Supreme Court of South Carolina
    • July 16, 1896
    ...a full and fair opportunity to make his defense. The law never acts by stealth. It condemns no one unheard.' Id. § 220, p. 267. In James v. Smith, 2 S. C. 183, where this subject is discussed, and the authorities cited, it was held that where a court is without jurisdiction the judgment is ......
  • State Ex Rel. Bruce v. Rice
    • United States
    • United States State Supreme Court of South Carolina
    • July 29, 1903
    ...of an order issued without jurisdiction is not a contempt of court. State v. Nathans, 49 S. C. 226, 27 S. E. 52; James v. Smith, 2 S. C. 183; 7 Ency. Law (2d Ed.) pp. 56, 57, and numerous cases cited in the notes. The judgment of the circuit court is reversed. WOODS, J., concurs in...
  • Inhabitants of Monmouth v. Inhabitants of Leeds
    • United States
    • Supreme Judicial Court of Maine (US)
    • February 20, 1884
    ...8 Blackf. (Ind.) 335; Webster v. Reid, 11 How. (U. S.) 437; 6 Wait's Actions and Defences, 805, 806; Freeman, Judgments, § 117; James v. Smith, 2 S.C. 183; Morris v. Halbert, 36 Tex. 19; Pen. R. Co. v. Weeks, 52 Me. 456; Ware v. Hunnewell, 20 Me. 291; Hathaway v. Persons unknown, 32 Me. 136......
  • Hunter v. Ruff
    • United States
    • United States State Supreme Court of South Carolina
    • July 16, 1896
    ...... rendered by his honor, Judge J. B. Kershaw (out of which the. actions at bar grew), the decree of his honor, Judge James. Aldrich, and the grounds of appeal, follow:. . .          Order. of Judge Kershaw. . . "The summons and complaint in this ... make his defense. The law never acts by stealth. It condemns. no one unheard.'. Id . § 220, p. 267. In James v. [25 S.E. 68] . Smith, 2 S.C. 183, where this subject is discussed, and the. authorities cited, it was held that where a court is without. jurisdiction the judgment is ......
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