Jenkins v. State
| Decision Date | 05 October 1899 |
| Docket Number | 10,596 |
| Citation | 80 N.W. 268,59 Neb. 68 |
| Parties | CHARLES T. JENKINS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Butler county. Tried below before SEDGWICK, J. Affirmed.
AFFIRMED.
Charles T. Jenkins and Burr & Burr, for plaintiff in error:
The order directing plaintiff in error to pay money into court was rendered without jurisdiction and is void. It was therefore, not a contempt of court to disobey the order. See Runyon v. Bennett, 29 Am. Dec. [Ky.], 431; Board of Commissioners v. Gorman, 19 Wall. [U.S.], 661; First Nat. Bank v. Rogers, 97 Am. Dec. [Minn.], 241; Northwestern Express Co. v. Landes, 6 Minn. 564*; City of Macon v. Shaw, 14 Ga. 162; Payfer v Bissell, 3 Hill [N.Y.], 239; Hyatt v. Clever, 73 N. W. [Ia.], 831; Kreglo v. Fulk, 3 W.Va. 74; Creighton v. Keith, 50 Neb. 813; Rhode Island v Massachusetts, 12 Pet. [U.S.], 718; Spoors v. Coen, 44 O. St. 497; Reynolds v. Stockton, 43 N.J.Eq. 211; Ruhland v. Supervisors, 55 Wis. 664; Fleming v. Hight, 101 Ind. 466; Cape May S. L. R. Co. v. Johnson, 35 N.J.Eq. 425; Mayor v. Conover, 5 Abb. Pr. [N.Y.], 251; People v. Weigley, 155 Ill. 491; State v. Second Judicial District, 50 Pac. [Mont.], 852.
The order directing money to be paid into court was void, as being an attempt to collect money without an execution. See State v. Jaynes, 19 Neb. 697; Segear v. Segear, 23 Neb. 307; Mallory Mfg. Co. v. Fox, 20 F. 409; "Blanche Page," 16 Blatchf. [U.S.], 1.
Other references: Hovey v. Elllott, 167 U.S. 409; Robertson v. Davidson, 14 Minn. 427.
C. J. Smyth, Attorney General, W. W. Stowell and George P. Sheesley, for the state.
References: Hagan v. Lucas, 10 Pet. [U.S.], 400; Dennistoun v. Draper, 5 Blatchf. [U.S.], 336; Ford v. Bushor, 12 N. W. [Mich.], 690.
Charles T. Jenkins, an attorney residing in the city of Lincoln, was found guilty of contempt of court by the district court of Butler county, and sentenced to pay a fine. The record is before us for review. It is disclosed that one Arthur Myatt instituted a replevin action in the county court of Butler county against Charles T. Jenkins and J. B. Morrison to recover possession of certain wheat in stack. The property was seized under the writ, and possession thereof, upon Myatt's giving the required bond, was delivered to him. He procured the wheat to be threshed, and the grain, not being in good condition, instead of being stored in elevators as was intended, was sold to F. P. Van Wickle, of Surprise, for $ 407.40. By agreement or consent of the parties the proceeds of the sale were left in the hands of Van Wickle, or rather his agent, Mr. Metzger, to await the termination of the litigation. Subsequently the replevin action was tried, and Jenkins obtained judgment for the return of the wheat, or its value. Three days thereafter he caused an execution to be sued out on said judgment, and to be delivered to A. J. Stanwood, constable. On the same day Jenkins and the officer went to said Metzger, agent of Van Wickle, and demanded the proceeds of the wheat, Jenkins falsely stating to Metzger that he had an order from the county court to pay over the money to him, and exhibited at the time a paper which he claimed to be such order. Metzer thereupon asked that a half hour be given in which to communicate with Myatt by wire, which request was refused, as was also the request that he be given five minutes for consultation and consideration of the demand for the proceeds of the wheat. Jenkins also threatened that, if the money was not paid over at once, they would close up the business of Van Wyckle under the said alleged order from the county court. Metzger, although at first hesitating, was induced by the matters just suggested to and did pay over to Jenkins the proceeds of the wheat. The next day, and within the time required by law, Myatt filed an appeal bond in the replevin cause, and perfected his appeal in the district court. In proceedings had therefor in said last named court in the replevin action, and upon averment and proper proof of said matters, an order was entered requiring Jenkins to forthwith restore the proceeds of the wheat, the subject-matter of the action. Jenkins paid $ 200, and refused to pay the balance of the money. The contempt proceedings against him followed.
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