McCandless v. State

• Decision Date: 13 June 1932
• Docket Number: 30061
• Court: Mississippi Supreme Court
• Parties: MCCANDLESS v. STATE

142 So. 490

167 Miss. 539

MCCANDLESS v. STATE

No. 30061

Supreme Court of Mississippi, Division B

June 13, 1932

(Division B.)

1. APPEAL AND ERROR. After dismissal of bill and dissolution of injunction, defendant could not be held in contempt for violating injunction after filing of supersedeas bond without notice.

Facts disclosed that chancery court dismissed bill and injunction restraining defendant from acting as school superintendent in suit by persons usurping office of school trustees, but allowed appeal with supersedeas provided it should be filed within certain period. Thereafter defendant school superintendent, at request of de jure trustees, resumed his duties as superintendent, and was thereafter served with citation for contempt after supersedeas bond had been filed without notice to him.

2. APPEAL AND ERROR.

To make supersedeas effective, writ must be served on one whose action is sought to be restrained thereby.

HON. W B. MONTGOMERY, Chancellor.

APPEAL from chancery court of Yazoo county, HON. W. B. MONTGOMERY Chancellor.

C. H McCandless was adjudged in contempt of court, and he appeals. Reversed, and appellant discharged.

Reversed, and appellant discharged.

Franklin, Easterling & Rosenthal, of Jackson, for appellant.

The legal trustees, having requested a dismissal of the case, and the court in compliance with their request having dismissed the case and dissolved the injunction, same constituted a nonsuit and the decree was not appealable.

Ball et al. v. Jones et al., 133 Miss. 500, 102 So. 563; Cohn v. Beal, 61 Miss. 398; Board of Levee Commissioners v. Montgomery et al., 110 So. 847; McHenry et al. v. State of Mississippi, 44 So. 831, 16 L. R. A. (N. S.) 1063; In re Sawyer, 124 U.S. 200; Ex parte Fisk, 113 U.S. 713; Savage v. Sternberg, 19 Wash. 679, 67 A. S. R. 751.

An injunction, void because of want of jurisdiction in the judge to issue it, may be disregarded and the person disregarding it is not guilty of contempt.

6 R. C. L. 505; People v. McWeeney, Ann. Cas. 1916B, 34; Old Dominion Telegraph Company v. Powers, 104 Ala. 220, 1 Am. & Eng. Cas. 119.

It is the contention of the appellant here that the mere filing of the bond did not reinstate the injunction, but that it was absolutely necessary that some notice be given to the appellant.

Section 23, Mississippi Annotated Code of 1930; Section 29, Code of 1930; Section 40, Code of 1930; Neel v. Neel, 61 Miss. 630.

The statutory procedure must be strictly followed and appeals are only allowed on the conditions prescribed by law.

Howell v. Miller, 118 So. 178; Wilson v. State of North Carolina, 169 U.S. 486, 42 L.Ed. 865; Miller v. Phipps, 119 So. 171.

Upon the filing of the bond and the perfecting of the appeal, the supersedeas went only to that part of the decree wherein damages were allowed. The decree of the chancellor did not in any way keep the injunction alive and the order of the chancellor allowing the appeal did not keep the injunction alive. In fact, in absolute language the court held that the injunction was dissolved and held for naught. The only provision of the decree in which the said complainants Kirk and Miller are interested, is, as heretofore stated, that part dealing with the damages allowed against them. They can have no interest in the question of control of the school property. This being true, the supersedeas secured by them could not affect the injunction.

2 R. C. L. 52, section 33.

The chancellor may allow the supersedeas and the clerk of the lower court may approve the supersedeas bond, but any application for a discharge or vacation of the supersedeas must be made to the supreme court.

Section 3386, Code 1930; Carr v. Marion Mortgage Co. (Fla.), 126 So. 776; McKinnon-Young Co. v. Stockton, 53 Fla. 734, 44 So. 237; State ex rel. Carroll v. Campbell, 25 Mo.App. 635; Kentucky & I. Bridge Co. v. Krieger, 91 Ky. 625, 16 S.W. 824; Howe v. Shearing, 6 Bosw. 686; West Virginia v. The Harper's Ferry Bridge Co., 16 W.Va. 864; Smith v. Government of the Canal Zone, 249 F. 273, 161 C. C. A. 281; Daly v. Brock, 63 So. 318, 133 La. 752; McLaughlin v. Janney et al. (Va.), 6 Gratt. 709; Smith v. Caldwell, Sneed (Ky.), 341.

Holmes & Potter, of Jackson, for the state.

Certainly, in the light of this record, and in view of the judgment of the court in the quo warranto proceedings which is res adjudicata that Miller and Kirk were de facto officers in possession of the office, it cannot be contended with reason that the complainants in the injunction suit were without power and authority to, bring the suit. Certainly, it cannot be contended with reason, either, on the facts of this case, that the injunction should not have been originally issued. It was the view of the chancellor that the suit was properly brought and that the injunction was rightly issued. He dissolved the injunction solely upon the ground that the dissolution followed his dismissal of the suit as a result of the resolution passed by Warrington and Plunkett. It is therefore respectively submitted that the appellant here cannot escape the penalty of his contempt action on the theory that the entire proceedings were void.

If application had been made to the chancellor in open court for an appeal with supersedeas and the supersedeas had been denied, and application had then been made to a judge of the supreme court for a supersedeas, and the same had been granted, there might be some merit in appellant's contention that he was entitled to notice on the granting of the supersedeas. In this case, however, the appeal with supersedeas was applied for at the conclusion of the hearing in open court in the presence of McCandless, and granted by the chancellor in open court and in the presence of McCandless.

32 C. J., p. 487, par. 841; Burr v. Kimbark, 29 F. 428.

It is no defense to the person violating the injunction that he acted under advice of counsel; and especially is this so where defendant goes further than he is advised that he can do.

32 C. J., P. 500.

Neither the ignorance of McCandless of the filing of the bond nor the advice of his counsel can furnish any defense to his violation of the injunction. He knew that the appeal with supersedeas had been granted. No law required that notice of the filing of the bond be given him.

The appeal with supersedeas operated to suspend the decree which dissolved the injunction. Therefore, the chancellor, by granting the appeal with supersedeas, elected to retain the preliminary injunction in force, and did so. The power to punish for contempt for a violation of the injunction, therefore, remained with the chancellor.

3 C. J., p. 1271; Section 367 of the Code of 1930.

OPINION

Griffith, J.

This appeal is from a decree of contempt and is the third appeal that has reached this court, growing out of the same general controversy wherein an illegal board of school trustees attempted to oust the legal board and to oust appellant who was the legally elected superintendent of the school. The first case is reported under the style State ex rel. Plunkett et al. v. Miller et al., 162 Miss. 149, 137 So. 737, and the second was dealt with in an elaborate opinion in Walter Day et al. v. C. H. McCandless, 167 Miss. 832, 142 So. 486, delivered on June 6, 1932. Those two opinions will disclose the main facts which have led up to that branch of the controversy which is now before us; but a brief review will here be made.

An illegal board of school trustees attempted to force the legal board out of office,...