Johnson v. Bouton

• Citation: 53 N.W. 995,35 Neb. 898
• Parties: JOHNSON ET AL. v. BOUTON.
• Decision Date: 21 December 1892
• Court: Supreme Court of Nebraska

35 Neb. 898

53 N.W. 995

JOHNSON ET AL.

v.BOUTON.

Supreme Court of Nebraska.

Dec. 21, 1892.

Syllabus by the Court.

1. A county judge has no power to commit for contempt one guilty of disobedience of an injunction allowed by him in an action in the district court. In such case the contempt is against the district court whose order is defied, and not the county judge. Maxwell, C. J., dissenting.

2. False imprisonment is the unlawful restraint of a person without his consent, either with or without process of law.

3. The question of malice in an action for false imprisonment is immaterial, except so far as it affects the measure of damage.

4. All persons who directly procure, aid, or assist in the unlawful detention are liable as principals.

5. It is not necessary to prove a conspiracy to unlawfully imprison, in order to entitle the injured party to recover.

Error to district court, Scott's Bluff county; CHURCH, Judge.

Action for false imprisonment by Charles A. Bouton against Daniel D. Johnson, Lot L. Feltham, J. M. King, and Thomas J. Fanning. Plaintiff had judgment, and defendants bring error. Affirmed.Lot L. Feltham and J. M. King, for plaintiffs in error.

M. J. Huffman and Greene & Hostetler, for defendant in error.

POST, J.

This was an action for false imprisonment in the district court of Scott's Bluff county, in which defendant in error, plaintiff below, recovered judgment. The material facts in the case are as follows: Johnson, one of the plaintiffs in error, commenced an action in the district court of said county against defendant in error, Bouton, seeking to restrain the latter perpetually from diverting the water from Winter's creek, a water course of said county, to the damage of his (Johnson's) land. In the absence of the district judge therefrom, King, another of the plaintiffs in error, as county judge, allowed a temporary injunction in said case. Subsequently, and while said action was still pending, Johnson, with Feltham, his attorney, appeared before King, and charged Bouton with violating the said order of injunction, and caused an order to be issued for his (Bouton's) arrest. Subsequently Bouton, who had in the mean time been arrested by virtue of the order aforesaid, was given a hearing by King, and adjudged to be in contempt of court. He was accordingly sentenced to pay a fine of $30 and costs, and ordered to give bond in the sum of $300, conditioned that he would in the future obey said injunction Failing to satisfy said judgment or give the required bond, he was, by the order of King, committed to the custody of the plaintiff in error Fanning, as sheriff, by whom he was detained eight days. During said time he was in the custody of a deputy sheriff, and boarded at the village hotel, except about 12 hours, during which time he was confined in jail. He subsequently commenced an action for damage against Johnson and Feltham, his attorney, King, the county judge, and sureties on his official bond, and Fanning, the sheriff, and sureties. On trial in the district court he recovered judgment in the sum of $100 against all the defendants therein except the sureties of King and Fanning, which is the judgment we are called upon to review.

The first and most important question presented is that of the jurisdiction of a county judge to punish as for contempt the disobedience of an order of injunction allowed by him in an action in the district court. The authority for the allowing of an injunction by the county judge in such a case is found in section 252 of the Code, viz.: “Sec. 252. By whom and when granted. The injunction may be granted at the time of commencing the action, or at any time afterwards before judgment, by the supreme court, or any judge thereof, the district court, or any judge thereof, or, in the absence from the county of said judges, by the probate judge thereof, upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.” The only other sections of said chapter which have any bearing on the subject under consideration are sections 255-257, 260, as follows: “Sec. 255. Bond. No injunction, unless provided by special statute, shall operate, until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted. Sec. 256. Order--Contents. The order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall indorse upon the summons, ‘Injunction allowed,’ and it shall not be necessary to issue the order of injunction; nor shall it be necessary to issue the same, where notice of the application therefor has been given to the party enjoined. The service of the summons so indorsed, or the notice of the application for an injunction, shall be notice of its allowance. Sec. 257. Order--Service. Where the injunction is allowed during the litigation, and without notice of the application therefor, the order of injunction shall be issued, and the sheriff forth with serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay.” “Sec. 260. Enforcement--Breach. An injunction granted by a judge may be enforced as the act of the court. Disobedience of an injunction may be punished as a contempt by the court, or by any judge who might have granted it in vacation. An attachment may be issued by the court or judge upon being satisfied by affidavit of the breach of the injunction against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody until he shall fully comply with such requirement, or be otherwise legally discharged.” The general rule is that the authority to punish for contempt belongs exclusively to the court in which the contempt is committed. Hawes, Jur. § 221; Wells. Jur. p. 180. In Rapalje on Contempts (section 13) it is said: “It is a well-settled rule that the court alone in which the contempt is committed, or whose order or authority is defied, has power to punish or entertain proceedings to that end.” In Kirk v. Manufacturing Co., 26 Fed. Rep. 501, it was held that when a cause is removed from the state court to the circuit court of the United States, pending proceedings against one of the parties for contempt in disobeying an order of the former, the circuit court has no jurisdiction in such proceeding on the ground that the contempt was against the state court only. See, also, Passmore Williamson's Case, 26 Pa. St. 9, and State v. McKinnon, 8 Or. 487. Mr. Bishop says, (2 Bish. Crim. Law, 268:) “It may be observed that the very nature of a contempt compels the court against which it was committed to proceed against it, and, if the court has jurisdiction, precludes any other or superior tribunal from taking cognizance of it, whether directly, on appeal, or otherwise.” The injunction was the process of the district court. It was not effective for any purpose until a bond was given and approved by the clerk of the district court, (section 255,) nor until the order was issued under the seal of the clerk, or the summons indorsed, “Injunction allowed,” (section 256.) When issued and served it was under the exclusive control of the district court. Whatever act Bouton may have done in violation of the injunction, it was an offense against the district court, and not the county judge. If such act amounted to a contempt, it was a contempt of the former, and not the latter.

The order which a county judge is authorized to make is in an action in the district court, an order formerly within the exclusive jurisdiction of a court of chancery. When that order is made, his jurisdiction ends, unless his further authority clearly appears from the statutes. Jurisdiction of a county judge to commit for the violation of the orders of a court of equity is an anomaly which should not be sustained upon any doubtful or uncertain grounds. It has been held by this court that proceedings in contempt are in their nature criminal, and that the strict rules of construction applicable to criminal proceedings are to govern therein. Boyd v. State, 19 Neb. 128, 26 N. W. Rep. 925. With this rule in mind, let us examine some other provisions of our statutes on the subject. The general provision on the subject is found in section 669 of the Code of Civil Procedure, as follows: “Sec. 669. Power of Court to Punish--When. Every court of record shall have power to punish by fine and imprisonment, or by either, as for criminal contempt, persons guilty of any of the following acts: First, disorderly, contemptuous, or insolent behavior to wards the court or any of its officers, in its presence; second, any breach of the peace, noise, or other disturbance tending to interrupt its proceedings; third, willful disobedience of, or resistance willfully offered to, any lawful process or order of said court; fourth, any willful attempt to obstruct the proceedings or hinder the due administration of justice in any suit, proceedings, or process pending before the courts; fifth, the contumacious and unlawful refusal of any person to be sworn or affirmed as a witness, and, when sworn or affirmed, the refusal to answer any legal and proper interrogatory.” By the next section it is provided that contempts committed in the presence of the court may be punished...