State ex rel. Curtis v. Durein

• Decision Date: 09 July 1891
• Citation: 46 Kan. 695,27 P. 148
• Parties: STATE ex rel. CURTIS, County Attorney, v. DUREIN et al.
• Court: Kansas Supreme Court

27 P. 148

46 Kan. 695

STATE ex rel. CURTIS, County Attorney, v. DUREIN et al.

Supreme Court of Kansas

July 9, 1891

Syllabus

1. A party charged with contempt for the violation of an injunction is not of right entitled to a jury trial.

2. Where the plaintiff in error fails to specifically point out the evidence alleged to have been erroneously admitted, as the rules of the court require, the assignment of error will not be considered.

3. In 1886, and under the act of 1885, the state obtained a judgment against the appellant, perpetually enjoining him from maintaining a common nuisance in violation of the prohibitory liquor law; and in 1887 the act was amended so that the penalty for the violation of such injunction was fine and imprisonment, instead of fine or imprisonment, in the discretion of the court. In 1891 the appellant was adjudged guilty of violating the injunction, and the penalty authorized by the act of 1887 was inflicted. Held, that the act of 1887 furnishes the measure of punishment for a contempt of that character, and that it applies to judgments rendered before the amended act was passed.

4. Upon the rendition of a judgment in such contempt proceeding the court rendering the same may allow a reasonable attorney’s fee in favor of the plaintiff and against the defendant therein, to be taxed and collected with other costs in the case; but no such allowance can be made in the absence of any proof as to what constitutes a reasonable fee.

5. A decree of injunction like that involved in the present case does not become dormant by the mere lapse, of time, and the fact that more than five years have expired since the rendition of such judgment is no reason why a person who violates the same will not be subject to punishment for contempt.

Appeal from district court, Shawnee county; JOHN GUTHRIE, Judge.

Martin & Keeler and Hazen & Isenhart, for appellant.

J. N Ives, Atty. Gen., and R. B. Welch, for the State.

OPINION

JOHNSTON, J.

Frank Durein asks the reversal of an order and judgment made in an injunction proceeding. On March 19, 1886, the state of Kansas obtained a final judgment of perpetual injunction against Frank Durein and Conrad Kreipe, forever enjoining them, and each of them, from using or permitting to be used a certain building in the city of Topeka as a place where intoxicating liquors are sold, bartered, or given away, or kept for sale, barter, or gift, otherwise than by authority of law. On April 1, 1891, the county attorney of Shawnee county filed an affidavit with the clerk of the district court, charging that Durein & Kreipe had violated the perpetual injunction which has been mentioned, and thereupon the court issued an attachment to bring them before the court, and requiring them to show cause why they should not be punished for the alleged contempt. On April 13, 1891, Durein appeared, and a hearing was had upon the charge of contempt, when it was found that Durein had willfully and knowingly used and permitted others to use his premises as a place where intoxicating liquors were sold and given away without authority of law, in violation of the decree and judgment of the district court, and he was adjudged to be guilty of contempt. The penalty imposed was that he should be confined in the county jail for 40 days, pay a fine of $500, and that a fee of $100 be taxed for the county attorney as a party of the costs in the case; and, further, that Durein should stand committed to the jail of the county until the fine and costs were paid. A reading of the testimony leaves no doubt that Durein was engaged in the unlawful sale of intoxicating liquors on his premises, contrary to the decree of injunction; but nevertheless he insists that the proceedings in contempt were erroneous, and the judgment unauthorized.

The first error assigned by Durein is that his demand for a jury trial was wrongfully refused. While the proceeding was of a criminal nature, it was really incident to and one of the final steps in the civil action of injunction. He was not entitled to a jury trial in the original proceedings, and neither could he demand a jury as a matter of right to try the charge that he had violated the injunction previously granted. The constitutional provision that "the right of trial by jury shall be inviolate," has no application in a summary proceeding of this character. This guaranty does not extend beyond the cases where such right existed at common law; and the right to punish for contempt without the intervention of a jury was a well-established rule of the common law. Kimball v. Connor, 3 Kan. 414; State v. Cutler, 13 Kan. 131; In re Burrows, 33 Kan. 675, 7 P. 148; McDonnell v. Henderson, 74 Iowa, 619, 38 N.W. 512; State v. Becht, 23 Minn. 411; State v. Doty, 32 N.J. Law, 403; State v. Matthews, 37 N.H. 451; Gandy v. State, 13 Neb. 445, 14 N.W. 143; Arnold v. Com., 80 Ky. 300; King v. Railway Co., 7 Biss. 529; Neel v. State, 9 Ark. 259; Crow v. State, 24 Tex. 12; Hart v. Robinett, 5 Mo. 11; Eikenbury v. Edwards, (Iowa,) 25 N.W. 832; Rep. Contempt, § 112; 3 Amer. & Eng. Enc. Law, 719.

The next error alleged is that declarations made by Conrad Kreipe, not in the presence of Durein, were received in evidence over his objection; but counsel fail to point out where in the voluminous record brought up such testimony may be found. The pressure of business in this court is such that we cannot stop to search through a large record for alleged errors that are not specifically pointed out, as the rules of the court require. Besides, the concessions that have been made in this case would in any event render the objection immaterial.

The further objection is made that Durein was sworn as a witness at the instance of the state. The record discloses that the court sustained an objection, and did not require him to testify; and hence there is nothing substantial in the objection.

It is next contended that the court had no authority to allow the county attorney a fee of $100 to be taxed as costs against the defendant. It is claimed that the authority for taxing a fee for the county attorney in such a case may be found in section 4, c. 165, of the Laws of 1887. It is there declared that all...