State ex rel. Heffron v. District Court for County of Stark in Tenth Judicial District of State

• Decision Date: 13 September 1913
• Citation: 143 N.W. 143,26 N.D. 32
• Court: North Dakota Supreme Court

143 N.W. 143

26 N.D. 32

THE STATE OF NORTH DAKOTA EX REL. F. C. HEFFRON, Assistant Attorney General of State of North Dakota, v. THE DISTRICT COURT FOR THE COUNTY OF STARK in the Tenth Judicial District of the State of North Dakota, and the Hon. K. E. Leighton, Acting Judge for said District Court in the Action in Said District Court Entitled, "The State of North Dakota, Plaintiff, v. Charles Nolan, Defendant."

Supreme Court of North Dakota

September 13, 1913

Mandamus by the State on relation of F. C. Heffron, Assistant Attorney General of State of North Dakota, against The District Court for the County of Stark in the Tenth Judicial District of the State of North Dakota, and the Hon. K. E Leighton, acting Judge for said District Court in the action in said District Court entitled, "The State of North Dakota, Plaintiff, vs. Charles Nolan, Defendant."

Writ allowed.

Writ issued.

F. C Heffron, Assistant Attorney General for State of North Dakota, for petitioner.

L. A Simpson, W. F. Burnett, and H. C. Berry, of Dickinson, for defendants.

Andrew Miller, Attorney General, and F. C. Heffron, Assistant Attorney General, for petitioner.

An order of the district court, dismissing proceedings to punish the defendant for statutory criminal contempt, is not appealable. Rev. Codes 1905, § 9374; State ex rel. Morrill v. Massey, 10 N.D. 154, 86 N.W. 225.

Appeals lie only where defendant is found guilty. Rev. Codes 1905, § 7573.

The order not being appealable, and there being no other remedy, the extraordinary and supervising powers of the supreme court may be invoked. State Const. §§ 86, 87; State ex rel. Red River Brick Corp. v. District Ct. N.D. , 138 N.W. 988.

Where the district court, by an erroneous construction and decision of some preliminary question of law, or of practice, has dismissed the main action, and refused to go into its merits, mandamus will lie to compel it to proceed with the trial, on its merits. High, Extr. Legal Rem. § 151; Raleigh v. First Judicial Dist. Ct. 24 Mont. 306, 81 Am. St. Rep. 431, 61 P. 991; State ex rel. Sorrel v. Foster, 106 La. 428, 31 So. 57; State ex rel. Northern P. R. Co. v. Loud, 24 Mont. 428, 62 P. 497; State ex rel. Aldrach v. Morse, 31 Utah 213, 7 L.R.A.(N.S.) 1127, 87 P. 705.

The right to mandamus in such cases is well established. People ex rel. Hamilton v. Barnes, 66 Cal. 594, 6 P. 698; Ex parte Bradstreet, 7 Pet. 634, 645, 8 L.Ed. 810, 815; Re Parker, 131 U.S. 221, 33 L.Ed. 123, 9 S.Ct. 708; State ex rel. Shannon v. Hunter, 3 Wash. 92, 27 P. 1076; State ex rel. Keane v. Murphy, 19 Nev. 89, 6 P. 840; Kimball v. Morris, 2 Met. 573; Merced Min. Co. v. Fremont, 7 Cal. 130, 7 Mor. Min. Rep. 309; Lindsay v. Wayne County Circuit Judge, 63 Mich. 735, 30 N.W. 590; People ex rel. Robinson v. Swift, 59 Mich. 529; Hoffman v. Allegan Circuit Judge, 150 Mich. 58, 113 N.W. 581; State ex rel. Chism v. Twenty-Sixth Dist. Judge, 34 La.Ann. 1177; People ex rel. Oelricks v. Superior Ct. 5 Wend. 114, 10 Wend. 285; Ex parte State, 115 Ala. 123, 22 So. 115; 2 Spelling, Extr. Relief, §§ 1398, 1404.

The supreme court has and may exercise supervisory powers in such cases. State ex rel. Red River Brick Corp. v. District Ct. N.D. , 138 N.W. 988; State ex rel. Sutton v. Dist. Ct. 27 Mont. 128, 69 P. 988; State ex rel. Fourth Nat. Bank v. Johnson, 51 L.R.A. 33, note; State ex rel. McGovern v. Williams, 20 L.R.A.(N.S.) 941, note.

The contempt charged in this case is based upon facts declared by statute to constitute contempt, and the district court has not discretion in the matter. Rev. Codes 1905, § 9374.

Even though the action to abate the nuisance, in which an injunction was issued, is dismissed, yet proceedings to punish for a contempt committed while the injunction was in force may still be heard. Gompers v. Buck's Stove & Range Co. 221 U.S. 418-451, 55 L.Ed. 797-810, 34 L.R.A.(N.S.) 874, 31 S.Ct. 492; State v. Gilpin, 1 Del.Ch. 25; Vertner v. Martin, 10 Smedes & M. 103; 9 Cyc. 33 M.

The plea of "former jeopardy" does not apply, and would not apply even in a strictly criminal proceeding. 12 Cyc. 261 B.

OPINION

Statement

BRUCE J.

This is an application for a writ which shall command the district court of the county of Stark to proceed and try one Charles Nolan upon a charge of contempt of court. It is an appeal to the supervisory powers of this court conferred by § 86 of article 4 of the Constitution of North Dakota. In November, 1907, an action was commenced in the district court for said Stark county entitled, "State of North Dakota ex rel. T. F. McCue, Attorney General of North Dakota, Plaintiff, vs. Chas. Nolan and E. J. Berry, Defendants, "to abate a liquor nuisance on lot 15, block 4, town of Dickinson," and summons, complaint, and injunction therein were served on defendants. This action was dismissed on motion of plaintiff in August, 1909. On June 9, 1909, another action in equity was commenced in said district court for the same purpose and between the same parties, and at the time of the issuance of the summons and complaint the Honorable W. C. Crawford, judge of said district court, made an order restraining said defendants from keeping said premises as a place where intoxicating liquors were sold, or kept for sale as a beverage, or where persons were permitted to resort for the purpose of drinking intoxicating liquors. Said injunctional order was served on the defendant, Charles Nolan, on June 9, 1909. On July 20, 1909, the Honorable W. C. Crawford duly transferred said action by written request to Honorable A. G. Burr, judge of the ninth judicial district. On or about July 21, 1909, Honorable A. G. Burr issued an attachment for said Charles Nolan, requiring him to appear before the court July 29, 1909, to answer to a charge of contempt of court for having violated such injunction. Before said proceedings were called for trial, and on August 6, 1909, said Charles Nolan procured a continuance on the ground of sickness, and on November 11, 1909, on motion of plaintiff, said proceedings were dismissed and defendant discharged, no hearing ever having been held thereunder. Immediately after said order of dismissal, the Honorable A. G. Burr issued another attachment for said Nolan, requiring defendant to appear before the court on December 7, 1909, to answer to the charge of contempt in having violated and disobeyed said injunction. The charge in the second attachment was the same as that in the former, except that in the former he was charged with having violated the injunction in having sold liquor from the 9th day of June, 1909, to the 19th day of July, 1909, while in the latter he was charged with having sold liquor from the 9th day of June, 1909, to the 9th day of November, 1909. Before there was any hearing upon this attachment, and on December 10, 1909, the Honorable A. G. Burr duly transferred the principal action by written request to Honorable W. H. Winchester, judge of the sixth judicial district. On December 13, 1909, Honorable W. H. Winchester duly transferred the principal action, by written request, to Honorable W. C. Crawford, judge of the tenth judicial district, and on the 11th day of October, A. D. 1909, the defendant E. J. Berry, who was the owner of the building in question, executed an undertaking and petition to abate said action, and on said matter being presented to the court, and some time during the year 1909, the Honorable W. C. Crawford fixed the amount of the undertaking, and stated that, upon the filing of said undertaking and payment of the costs, he would order an abatement of the action. Said undertaking is now in the files, but the time of filing is not indorsed on said undertaking or petition, nor is there any record of the time of said filing, and no order of abatement has ever been made or signed. The affidavits in the record show, however, that some time during the year 1909 the court had fixed the value of the property and determined the amount of the bond, and that said bond had been duly approved, and that the costs, as fixed by the court, have been paid into the clerk's office. On November 6, 1912, the Honorable Frank E. Fisk, judge of the eleventh judicial district, was requested by the Honorable W. C. Crawford to try and determine all matters and issues in the said case. And on November 8, 1912, a motion was made by the defendants' attorneys to dismiss the contempt proceedings on the grounds that: "1. The affidavit upon which said warrant is based does not state or show by positive averment a prima facie case in behalf of the state in this that (a) the affidavit of F. C. Heffron is made entirely upon information and belief; in so far as a violation of the injunctional order is concerned; (b) the affidavits of J. C. Lemar, Gust Morberg, and H. L. Thompson do not state or show, by way of positive averment or at all, the sale or charge of sale of intoxicating liquors at the time referred to in the affidavit, by this defendant Charles Nolan, and that the affidavits of said Lemar, Morberg, and Thompson nowhere state or show the sale of intoxicating liquor or the violation of any injunctional order by the defendant Charles Nolan, personally. That at the time of the making of the affidavit herein, and upon which this warrant of attachment for contempt as made and sworn to, there was in this court, pending and undisposed of, another attachment based upon the same injunctional order and the same action specified in this warrant, and against the same defendant, Charles Nolan, for the identical contempt as charged herein. 2. That the original action upon this attachment is based, which action was begun under date of June 1, 1909, has, in all things and pursuant to the statutes of North Dakota in such case made and provided, been abated by the...