State ex rel. Edwards v. Davis

• Decision Date: 19 March 1892
• Citation: 2 N.D. 461,51 N.W. 942
• Parties: State ex rel. Edwards v. Davis.
• Court: North Dakota Supreme Court

2 N.D. 461

51 N.W. 942

State ex rel.

Edwards

v.Davis.

Supreme Court of North Dakota.

March 19, 1892.

Syllabus by the Court.

An order punishing a person for contempt in disobeying an injunction, where the contempt proceeding is not and cannot be used as a remedy to enforce obedience to the injunction or to indemnify the party injured by the contempt, is not an order made in an action or special proceeding, and is therefore not appealable. Such a contempt proceeding is not remedial in its character, but purely of a criminal nature, its object being exclusively to vindicate the authority of the court.

Appeal from district court, Cass county; Roderick Rose, Judge.

Proceedings on the relation of Alanson W. Edwards against Alfred C. Davis for contempt of court. From an order adjudging defendant guilty, he appeals. Appeal dismissed.Alfred C. Davis and Benton & Amidon, for appellant. S. G. Roberts, for respondent.

Corliss, C. J.

This appeal is from a final order made in contempt proceedings adjudging the appellant, Davis, guilty of contempt in advising the disobedience of an alleged injunction order restraining the voting of certain stock by one E. O. Faulkner at a stockholders' meeting held to elect directors of the Argus Printing Company. The appealability of this order is questioned. It imposed a fine of $75, and ordered that Mr. Davis stand committed to the common jail of Cass county, in this state, until such fine should be fully paid to the clerk of the court making the order. The authorities are in inextricable confusion on the question of the right to appeal in contempt proceedings. A review of them will profit little. This inquiry is to be solved by our own statutes. Section 1 of the appeal law of 1891 provides that “a judgment or order in a civil action or in a special proceeding, in any of the district courts, may be removed to the supreme court by appeal, as provided in this chapter, and not otherwise.” Section 24 of the same act provides that a final order affecting a substantial right, made in special proceedings, may be reviewed by appeal. Chapter 120, Laws 1891. It is obvious that the order appealed from is not an order in an action. It in no manner affects the merits of the action. It has no connection with any step taken or to be taken in the action itself. It determines no question in the action for or against either party. It does not affect the final judgment. The action can proceed as though it had never been made. It is an episode in an action. It is the vindication by the court of its authority. If it can be regarded as a proceeding in the action, still it is not an appealable order. Certainly it is not the final judgment in the action. Nor is it an order affecting a substantial right in an action, which, in effect, determines the action, and prevents a judgment from which an appeal might be taken. It does not involve the merits of an action. Neither is it one of the orders specifically enumerated in section 24 as appealable. It remains to be considered whether the order was one made in special proceedings, within the meaning of the appeal law. The New York authorities are cited to sustain the contention that it is such an order. An examination of these cases will disclose the fact that the contempt proceedings, which were there held to be special proceedings, were instituted, not primarily to vindicate the authority of the court, but under a statute authorizing such procedure to compel the contemnor, by way of fine, to make good to his antagonist the damage done the latter by the refusal of the former to obey an order or decree of the court. In some cases where the order has been held appealable, the proceeding was instituted as process to compel obedience to an order or decree in equity. Where a statute gives to the injured party a right to institute contempt proceedings to indemnify him against loss by reason of the disobedience by his antagonist of an order, judgment, or decree, it is clear that, while the proceeding is in name and form a contempt proceeding, it is not instituted for the sole purpose of vindicating the authority of the court, but as a remedy to the suitor, who has a right to insist on obedience to the mandate of the court, and therefore ought to be allowed to demand, as a matter of right, that, in a proper case, the court give him the benefit of its order or decree in his favor by so exercising its power to punish for contempt, in case of a disobedience thereof, as to indemnify him against injury by reason of such disobedience. The primary object of such a proceeding is indemnity to the litigant. Incidentally the court's authority is vindicated. The court, under the command of the statute, lends its contempt power to the suitor, who has been denied the fruits of an order or decree by the refusal of his opponent to obey it. Such a proceeding is therefore a remedy, and, not falling within the definition of an action, either civil or criminal, it is of necessity a special proceeding. “Every other remedy is a special proceeding.” Section 4812, Comp. Laws. It is necessary that the contempt proceeding should be remedial in its character to be a special proceeding. It is every other “remedy” that is a special proceeding. In New York the decisions stand upon a statute which expressly gives the injured party the legal right to institute and control contempt proceedings, to the end that the court may therein impose, as a punishment for the contempt, such damages as the injured party has sustained by reason of such contempt. This is apparent from the authorities. The leading case in that state on this point is Sudlow v. Knox, 7 Abb. Pr. (N. S.) 411. Speaking of the nature of the contempt proceedings the order in which was held appealable, the court said: “These were instituted and conducted under the provisions of the statute entitled ‘Of proceedings as for contempt to enforce civil remedies and to protect the rights of parties in civil actions.”’ The court say further: “Section 21 provides that, in case the fine imposed for indemnity of the party injured shall be paid to and accepted by him, it shall constitute a bar,” etc. It is apparent that the contempt proceedings thus held to be special proceedings were, by force of a statute, remedial in their character. The act cited in the opinion was passed to afford to the successful litigant a legal right to demand that the power of the court to punish for contempt be so exercised to enforce a decree or order in his favor as to indemnify him for damage sustained by the contempt. The other New York authorities follow this decision. The Michigan authorities belong to the same class. In People v. Simonson, 9 Mich. 491, the court said: “This is an appeal from an order made under section 4094 of Compiled Laws, punishing defendants for a contempt for violating an injunction, which the relator moves to have dismissed. The section is as follows: ‘If an actual loss or injury has been produced to any party by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss.’ The order is final, and cannot be reviewed unless on an appeal from the order itself. It is more of a civil than of a criminal nature, its principal objects being to compel defendants to make compensation to the relator for the injury they have done him in violating the injunction, rather than to vindicate the dignity of the court and the majesty of the laws. For these reasons we are of the opinion the motion should be denied.” In Romeyn v. Caplis, 17 Mich. 449, the court said: “It has been contended before us that the order in this case was not one from which an appeal could be taken, since the appellee did not claim that an actual loss or injury had been produced to the party by the misconduct alleged, and did not ask for any sum to indemnify him. I think that this position cannot be sustained. The injunction was an appropriate civil process, belonging to the remedy in the action in which it issued, and the proceeding for its violation was under the chapter entitled ‘Of proceedings as for contempt to enforce civil remedies and to protect the rights of parties in civil actions.’ The order complained of was final, and not merely a step in the course of the proceedingcontemplating further action by the court in relation to the same matter, and it belonged to that class of proceedings which are provided to secure obedience to the necessary processes of courts in civil cases. It adjudged the party guilty of willful disobedience of the injunction, and required him to pay a fine, under peril of imprisonment. It did not stop here. It expressly awarded to the complainant the costs and expenses incurred in prosecuting the contempt, and which were fixed in it at $10. This part of the order cannot be reconciled with the claim of the appellee that the prosecution of the contempt was only carried on by the complainant as the friend of the court, and that the infliction was for the sole purpose of vindicating the authority of the court. The essential character of the proceeding indicates very clearly that what was sought to be accomplished, and in fact done, was to be in keeping with the purpose of the statute which has been referred to.”

In Wisconsin, as in New York and Michigan, there exist statutes providing for the punishment of contempt for the benefit of the injured party. The same distinction is there made. If the proceeding is carried on for the benefit of the successful litigant, the remedy is a special proceeding, and the order is appealable. Said the court in State v. Giles, 10 Wis. 101: “This is an appeal from an order of the circuit court of Jefferson...