State ex rel Mears v. Barnes
| Decision Date | 27 December 1895 |
| Court | North Dakota Supreme Court |
Original proceeding on the relation of E. Ashley Mears against O. G. Barnes, sheriff, for discharge on habeas corpus.
Writ discharged.
Writ discharged, and the petitioner remanded to the custody of the sheriff, O. G. Barnes.
W. H Standish and M. A. Hildreth, for relator.
Newman Spalding & Phelps, for defendant.
By this proceeding our original jurisdiction is invoked. The petitioner, E. A. Mears, has sued out a writ of habeas corpus to inquire into the legality of his imprisonment under an order of the District Court adjudging him guilty of contempt in refusing to obey an order of that court requiring him to execute and deliver, as president of the Bank of Minot, a corporation, certain conveyances of real estate, which, it is claimed, is the property of such corporation. The petitioner bases his application for release from such imprisonment on two grounds: He contends that the order adjudging him guilty of contempt, and imposing on him the punishment of remaining in confinement until he should obey the order directing him to execute such conveyances, is void for want of jurisdiction in the court making it. He also insists that, by reason of certain acts which have been performed by him since the contempt order was made, he has become entitled to his discharge from further imprisonment.
One of petitioner's assaults upon the jurisdiction of the court rests on the assumption that when the order in question was made the action in which it was made was no longer pending. This position is not tenable. In the action referred to, a receiver was appointed, and, while it is undoubtedly true that both the plaintiff and defendant in such action stipulated that it might be dismissed, this court held, on appeal from an order refusing to enforce such stipulation as against the objections of the receiver, that such receiver was entitled to protection with respect to his fees and expenses, and that before the action could be dismissed he had a right to have his accounts settled and allowed and his fees and expenses adjusted, and to be discharged on complying with the order of the court touching the receivership. Hoffman v. Bank, 4 N.D. 473, 61 N.W. 1031. It is not pretended that these necessary steps preliminary to a dismissal of the action had been taken, and the action dismissed, at the time the contempt order was made. That the action was pending, cannot therefore, be doubted. As only jurisdictional matters, as contradistinguished from errors in exercising jurisdiction, are open to inquiry in this proceeding, we must assume in support of the order that the court deemed these conveyances necessary to put the receiver in position to secure the necessary funds wherewith to pay his fees and disbursements as such receiver.
It was further urged that the contempt order was void for the reason that the District Court had before it, when it adjudged the petitioner guilty of contempt, no evidence "legal or sufficient" to show that he was president of such corporation, or had any authority, even assuming that he was president, to execute deeds of corporate real estate. On habeas corpus such matters are not open to investigation. It is undisputed that the court had jurisdiction of the person of the petitioner by service of necessary papers on him in such contempt proceeding; and that the District Court has general power to make the contempt order made by it, where the evidence warrants a finding that a party has been guilty of a contempt of the class which the court adjudged the petitioner to be guilty of, cannot be denied. The court had power to hear and determine the questions of fact and of law arising in the contempt proceeding against relator, and for mistakes and errors in its decision its judgment or order would be subject to reversal on appeal. But such mistakes and errors would not divest it of the complete jurisdiction which had already become vested in it when it entered upon the discharge of its functions, as a court of justice, to hear the case, and decide whether the petitioner had been guilty of contempt. We assume, in deciding this point, that the petitioner could have proved before us, had we permitted him to go into those questions, that there was no legal or sufficient evidence before the District Court showing that he was president of the corporation, or had power as such president to execute the conveyances he was ordered to execute. There is no difference, so far as these questions are concerned, between a final order in a contempt proceeding and a final judgment in a civil or a criminal case. A defendant in a criminal case can never secure his release on habeas corpus by showing that there was no evidence of his guilt to sustain the judgment of conviction. For an error of this kind, which does not touch jurisdiction, the law has opened up another channel of redress, and it is only when the case reaches the higher tribunal through this channel that the judgment can be overthrown. In this proceeding we are exercising, not our appellate, but our original, jurisdiction. If the anology between a judgment in a criminal case and the contempt order in question seems defective, because the contempt proceeding culminating in such order was civil in its character (State v. Davis, 2 N.D. 461, 51 N.W. 942,) we may resort to an anology not open to this criticism. When a defendant in a tort action is seized on execution after final judgment, he cannot on habeas corpus attack the judgment, and secure his release from imprisonment by showing that there was no evidence to sustain the judgment adjudging him liable for the alleged tort. The final order in a contempt proceeding, whether of a civil or criminal character, stands upon the same footing in this respect as such a judgment. Mr. Church says on this point: "A contempt, indeed, is in itself a distinct and substantive offense; and, in the case of a court of general jurisdiction, there is no distinction in principle between a judgment pronounced after trial upon indictment, and a summary committal for contempt, so far as concerns the question of collateral impeachment." Church, Hab. Corp. p. 451. It is true that he is speaking of a case of a judgment in a criminal action and a judgment in a criminal contempt proceeding, but in this respect we can discover no difference between contempt proceedings of a criminal and those of a civil nature. See, in support of our ruling on this branch of the case, In re Rosenberg, 90 Wis. 581, 63 N.W. 1065; People v. Liscomb, 60 N.Y. 559; Ex parte Perkins, 18 Cal. 60; Forrest v. Price, 52 N.J.Eq. 16, 29 A. 215; State v. Houston, 40 La.Ann. 434, 4 So. 131; Ex parte Perdue, 58 Ark. 285, 24 S.W. 423. Our statute in terms declares that except with respect to the question whether the court has exceeded its jurisdiction as to matter, place, sum, or person, and except in cases where the party has become entitled to his discharge by reason of some act, omission, or event which has taken place subsequent to the original imprisonment, and except with regard to certain other questions not relevant to this case, "no court or judge on the return of a habeas corpus shall in any other manner inquire into the legality or justice of the judgment or decree of a court legally constituted." Comp. Laws, § 7841.
It is next urged that the petitioner has become entitled to his discharge by reason of his having perfected an appeal from the contempt order. But the mere perfecting of an appeal would not stay the execution of such order. To secure such a stay, the appellant (the petitioner here) should have complied with the provisions of section 15 of chapter 120 of the laws of 1891. That he has made no effort to comply therewith is not disputed. No application was made to the District Court to have that court fix the terms on which it would allow a stay of proceedings.
It is further contended that the District Court was without jurisdiction over the case in which the contempt order was made, at the time it was made, because a sufficient petition...
To continue reading
Request your trial