Noble v. Aasen

• Decision Date: 28 May 1901
• Citation: 10 N.D. 264,86 N.W. 742
• Parties: NOBLE TP. v. AASEN.
• Court: North Dakota Supreme Court

10 N.D. 264

86 N.W. 742

NOBLE TP.

v.AASEN.

Supreme Court of North Dakota.

May 28, 1901.

Syllabus by the Court.

1. Contempt proceedings under chapter 34 of the Code of Civil Procedure: In proceedings instituted under said chapter, the accused is not, upon filing affidavits showing the prejudice of the presiding judge, entitled to have another judge called in to determine the case; construing sections 5454a, 8120, Rev. Codes 1899. The proceeding is neither a civil nor a criminal action.

2. Construing sections 5630, 5954, Rev. Codes 1899: Held, that appeals in contempt cases are not governed by section 5630, and the same are governed by section 5954 and by the provisions of article 8 of chapter 10 of the Code of Civil Procedure. Held, further, that, in order to review the sufficiency of the evidence, the statement of the case must embrace specifications of particulars showing wherein the evidence is insufficient.

3. Section 5942, Rev. Codes 1899, construed. Held, that the accused, whether brought into court by order to show cause, or under a warrant of attachment, unless he admits the offense charged, is entitled, under the statute, to have interrogatories filed “specifying the facts and circumstances of the offense charged against him.” Held, further, that defendant's mere silence and failure to object to the proceedings upon the ground that none have been filed will not waive this statutory right. Whether an express waiver of interrogatories would defeat a conviction had without filing interrogatories is not decided.

4. In the absence of an express waiver of interrogatories an order of conviction will be vacated where none are filed.

5. Construing sections 5943 and 5944, Rev. Codes 1899: Held, that in cases of contempts of a civil nature, where the accused is found guilty of the offense charged, and the offense consists of acts or conduct calculated to defeat, impair, impede, or prejudice the rights or remedies or a party to an action or proceeding, but no actual loss or injury is proved, the court can impose a fine nevertheless, but the same cannot exceed $250 in addition to the costs and expenses of the proceeding. In such case the fine must be paid into the public treasury, and no part of the same can be paid to the moving party. Held, further, in cases of civil contempt, where an actual loss has been produced by the commission of the offense, and where the injured party has incurred costs and expense, that the court may order the offender to pay over to the injured party a sufficient sum to indemnify him. But the amount so ordered to be paid over must be ascertained from the evidence, and cannot be fixed arbitrarily at the discretion of the trial court. Accordingly, held, that the order in this case is illegal and void, for the reason that the same required the accused to pay over to the plaintiff the sum of $150, which sum was an amount fixed by the trial court arbitrarily, and the same was not based upon testimony showing either an actual loss or the amount of damage suffered, in dollars and cents; nor was there any evidence offered tending to show the amount of the plaintiff's costs of expenses.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by the township of Noble against Ole T. Aasen, in which defendant was adjudged guilty of a civil contempt, and he appeals. Reversed.M. A. Hildreth, for appellant. Morrill & Engerud, for respondent.

WALLIN, C. J.

In this proceeding the trial court found that the defendant was guilty of a contempt of court, in this: that the defendant had disregarded and otherwise violated a certain judgment entered in said court in the above-entitled action. The proceeding was initiated by an order of the district court, based upon two affidavits, directing the defendant to show cause on November 7, 1900, before said court, why the defendant “should not be adjudged guilty of contempt, and punished therefor accordingly.” The order, with the affidavits, was served upon the defendant; and on the return day named in the order the defendant filed three affidavits with the clerk of the district court, which the defendant relied upon as a basis for an application to said court to call in another judge to preside in the case. The matter came on to be heard before the district court on November 8, 1900, counsel for both sides appearing. The record shows that counsel for the plaintiff stated that he appeared in support of an application for an attachment for contempt. The defendant's counsel stated that his appearance in the case was special, and that he claimed that the court could not then proceed to hear the application for an attachment, for the reason that the affidavits filed the previous day set out a state of facts which required the calling in of an outside judge to determine the issues presented. Counsel claimed that he was entitled to have another judge called, under either section 5454a or section 8120 of the Revised Codes of 1899. This contention of defendant's counsel was overruled, whereupon the court postponed the further hearing of the matter until November 12, 1900. We are clear that the defendant was not entitled to have an outside judge called in to hear this proceeding. The sections of the Code relied upon by defendant, and above cited, have reference either to a civil or criminal action proper, and this proceeding is neither the one nor the other. If the proceeding is to be regarded as a means of punishing a criminal contempt of court, it must be classed as a summary proceeding of a quasi criminal nature, and hence not a criminal action. State v. Crum, 7 N. D. 299, 74 N. W. 992. If, on the other hand, the proceeding is to be regarded as a remedy resorted to in the interest of a suitor in a civil action, it must, under the statute, be regarded as a motion made in an action. See Rev. Codes 1899, § 5937. If an attachment is issued in a contempt case, the matter at once becomes an original special proceeding, wherein the state is plaintiff and the accused is defendant. Id. The application to call in an outside judge was therefore properly denied.

The matter came on to be heard upon the merits on November 12th, at which time the parties were represented by counsel. The defendant filed certain affidavits in opposition to the affidavits filed in support of the motion, and the moving party then introduced certain oral testimony in rebuttal, whereupon the trial court entered its final order in the matter, from which the defendant has appealed to this court. Said order, so far as the same is material, is as follows: “The court finds that the said defendant, Ole T. Aasen, in violation of the terms of the judgment, planted trees and constructed an embankment of manure, straw, and earth below the culvert across the swale or water course mentioned in said judgment, thereby obstructing said water course. It is therefore ordered that said Ole T. Aasen, defendant, be, and he is hereby, adjudged guilty of contempt of this court, and that he pay to the plaintiff a fine of one hundred and fifty dollars (which includes the cost); and in default of such payment said defendant will be committed to the jail of Cass county, and there be confined until discharged according to law. It is further ordered that said defendant forthwith remove the obstruction placed in said water course on his land, and restore the same, as near as possible, to its natural condition. Let judgment be entered accordingly.” To this order an exception was saved. A statement of the case was settled, which embodies all the affidavits and evidence upon which said final order was made; and the statement also embraces exceptions to the findings of fact upon which the conviction is predicated, and also specifies a list of alleged errors of law. The statement contains no demand for a trial anew in this court either of the entire case or of any fact in the case.

Upon this record it is contended here that this court is without authority either to try the entire case anew, or any issue of fact in the case; and the further contention is made that, on account of an alleged insufficiency of the specifications in the statement, this court cannot, under the statute, proceed to inquire whether the findings of fact are justified by the evidence. These contentions of counsel present important questions of procedure, which have never before been passed upon by this court in a contempt case; and, with a view of settling the practice in such cases, it becomes necessary to put a construction upon section 5954 of the Revised Codes of 1895, which is as follows: “Appeals may be taken to the supreme court from any final order adjudging the accused guilty of contempt and upon such appeal the supreme court may review all the proceedings had and affidavits and other proof introduced by or against the accused. For the purpose of reviewing questions as to the sufficiency of the evidence a statement of the case may be prepared and settled within the time and in the manner provided in article 8 of chapter 10 of this Code. Such appeal shall be taken, except as in this section otherwise provided in the manner prescribed in chapter 14 of this Code.”

We remark first that in the absence of legislation it is very difficult to determine upon authority precisely what matters may be considered by a court of review in passing upon a conviction for contempt of court committed in an inferior tribunal. See 4 Enc. Pl. & Prac. p. 809. In the light of this conflict of authority, we may safely say that the section of the Revised Codes above quoted was primarily intended to settle the question in this state, and that the same is disposed of by the declaration that “upon such appeal the supreme court may review all the proceedings had and affidavits and other proofs introduced by or against the accused.” But in what form are the evidence and the procedure had and taken in the court below to be presented to this court? The...