Riley and Bealmear v. Wallace, Judge
| Decision Date | 18 June 1920 |
| Parties | Riley and Bealmear v. Wallace, Judge. |
| Court | Kentucky Court of Appeals |
Appeal from Jefferson Circuit Court (Chancery Branch, First Division).
CHARLES P. JOHNSON and CLEM W. HUGGINS for petitioners.
N. C. CURETON, Assistant County Attorney, GROVER G. SALES and JOHN L. WOODBURY for defendants.
W. H. Haney sued his wife for a divorce on the ground of five years' separation. On the proof of two witnesses, C. B. Riley and A. W. Bealmear, a judgment granting the prayer of the petition was entered November 25th, 1919. December 2nd, defendant moved the court to set aside the judgment of divorce on the ground of accident and surprise, and because of fraud in the obtention of the decree, setting up in an affidavit filed in support of the motion that her husband had admitted to her that he had no cause for divorce and had promised to drop the proceedings. For this reason an answer prepared by her counsel was not filed, and she took no further steps in the matter. The first she knew of the judgment was when she saw a notice in a newspaper to that effect on November 25th, 1919.
When the motion was first called on the docket, W. H. Haney filed his affidavit stating that on November 26th, 1919, the day following the entry of the judgment, he had married one Gladys Innes, and thus the status of the parties had been changed. The motion was set for hearing on the 17th of December. In the meantime subpoenas were issued for various witnesses, including Riley and Bealmear, to appear on said date. Upon that hearing it was established that Haney and his wife had lived together as man and wife within two years prior to the filing of the petition for divorce. The testimony of Riley and Bealmear substantially showed that the evidence given by them in the divorce case was based upon information received from Haney. Thereafter, to-wit, January 3, 1920, an information was filed by Honorable Arthur M. Wallace, judge of the chancery branch, first division, Jefferson circuit court, who had granted the decree, in which he set out in detail the facts charging that the testimony given by the two witnesses aforesaid was false and untrue and said statements were for the purpose of interfering with the lawful and true administration of justice in said case. A rule returnable January 6, 1920, was issued upon said information. In a response to this rule, filed by Riley and Bealmear, they denied they were guilty of contempt, or that the testimony given by them in the divorce suit was untrue. At the same time they filed a demurrer to the information as well as a motion to strike same from the record. These were overruled and the court of its own motion struck out certain parts of the response, and before the rules were called up, to-wit, on January 29th, Riley and Bealmear petitioned a member of this court for an order restraining Judge Wallace from entering any order or proceeding in anywise to punish the petitioners for contempt of court.
By agreement of the parties the proceedings in the circuit court were held in abeyance until the matters could be disposed of by this court.
As a general statement it may be said that all courts of record of superior jurisdiction have the inherent power to punish for contempt. Arnold v. Commonwealth, 80 Ky. 300. This right is recognized by statute. For instance in section 1291, Kentucky Statutes, it is provided that a court may for contempt impose upon the offender a fine not exceeding $30.00 or imprisonment not exceeding thirty hours, without the intervention of a jury.
In the Arnold case, supra, it was held that it was not necessary to provide by statute a mode of trial in contempt cases. The manner of conducting such proceedings was established by a rule of the common law, and all the legislature has said is that the tribunal to whom the contempt is offered shall not, by way of punishment exceed a fine of thirty dollars or imprisonment exceeding thirty hours without the intervention of a jury. The rule of the common law has been modified by giving to the party charged, the right to a trial by jury, and the judge is required to have a jury empaneled, when, in his opinion, the indignity offered requires a greater punishment than he is authorized to impose by the statute.
Of prime importance is an answer to the question whether the petitioners were guilty of contempt of court.
As said in 13 C. J. 25: "Ordinarily false swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court." This, we think, is a fair statement of the rule. Contempts of court are either direct or constructive. It is manifest the court treated the acts of the petitioners as a direct contempt and we will deal with it as such.
Unless the chancellor knew the testimony given by the petitioners was false, the petitioners could not be proceeded against by information and rule, hence it becomes necessary to inquire as to whether the court had actual or judicial knowledge or cognizance of the alleged falsity of the statements given or made by the petitioners. Knowledge of notorious facts, i. e., common knowledge, the court may be assumed to share with other intelligent men. Judicial knowledge is not the personal knowledge of the judge, it may be defined as the cognizance of certain facts which a judge under the rules of legal procedure or otherwise may properly take or act upon without proof because already known to him, or that knowledge which the judge has or is assumed to have by virtue of his office, virtute officii. To announce and enforce the provision of certain laws,...
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