State ex rel. Norris v. Dist. Courts Eleventh & First Judicial Dists.

• Decision Date: 16 January 1893
• Citation: 52 Minn. 283,53 N.W. 1157
• Court: Minnesota Supreme Court
• Parties: STATE EX REL. NORRIS ET AL. v DISTRICT COURTS ELEVENTH & FIRST JUDICIAL DISTRICTS.

52 Minn. 283

53 N.W. 1157

STATE EX REL. NORRIS ET AL.vDISTRICT COURTS ELEVENTH & FIRST JUDICIAL DISTRICTS.

Supreme Court of Minnesota.

Jan. 16, 1893.

(Syllabus by the Court.)

1. An ex parte order granting an injunction is not appealable, the remedy being, in the first instance, by application to the court granting such order. Hence an appeal from such an order, and the filing of a supersedeas bond, is not effectual to stay or suspend the operation of the order.

2. If the judges of the district court in the district where an injunction of the court has been disobeyed are disqualified from acting, proceedingsto punish for such contempt may be had in an adjoining judicial district.

3. Proofs held sufficient to sustain the conclusion of the court as to such disqualification.

4. Condemnation proceedings, under the law of eminent domain, against a part only of several tenants in common, confers no right to take the property for railroad purposes as against the other cotenants.

5. The fact that a contempt is a misdemeanor, and punishable by indictment, does not forbid summary proceedings therefor before the court. The statute authorizing this is not unconstitutional.

Certiorari by the state on the relation of Michael Norris and others against the district courts of the eleventh and first judicial districts to review a judgment fining relators for contempt of court. Writ dismissed.

McCordic & Crosby, (J. L. Washburn, of counsel,) for relators.

R. R. Briggs, for respondents.

DICKINSON, J.

In proceedings at Stillwater, in Washington county, before the Hon. W. C. WILLISTON, judge of the district court in and for the first judicial district, upon an order requiring the relators to show cause why they should not be punished for contempt of court, they were adjudged to be guilty of contempt, and fines were imposed therefor. By writ of certiorari the proceedings have been brought to this court for review. The proceedings to be reviewed, and the events connected with the acts of the relators, for which they were found guilty of contempt, may be thus stated:

An action was commenced in the district court in the county of St. Louis (eleventh judicial district) by one Myers and others, who may be hereafter referred to as the Myers brothers, against the Duluth Transfer Railway Company, the Calumet Construction Company, these relators, and others, to restrain these relators and others from proceeding with the construction of the railroad of said railway company across certain lands at or near the city of Duluth, of which the plaintiffs were the owners of an undivided one third. It appears that the Calumet Construction Company had contracted to construct the railroad, and that subcontracts for construction had been let, pursuant to which the relators had undertaken and were performing the work sought to be restrained. The defense was interposed that the right to construct the road across the plaintiffs' land had been acquired by condemnation proceedings. Upon the ex parte application of the plaintiffs in that action, based on the complaint therein, a preliminary injunction was directed to be and was issued and served upon the relators. This order was made by the Honorable IRA B. MILLS, the judge of the fourteenth judicial district, residing at Moorehead, in Clay county, but who was also exercising the duties of a judge of the eleventh district; from which the fourteenth had been carved out. Chapter 100, Gen. Laws 1887; chapter 151, Gen. Laws 1889. Upon the service of the injunction upon the relators they appealed to this court from the order granting the same, and executed the supersedeas bond provided by statute to stay proceedings pending an appeal. They then went on with the work of constructing the railroad, in disobedience of the terms of the injunction. Thereupon, upon application of the plaintiffs to the Honorable F. M. CROSBY, one of the judges of the first judicial district, an order was made directing the relators to show cause before Judge WILLISTON, the other judge of that district, at Stillwater, therein, as before stated, why they should not be punished for such disobedience of the injunction. This proceeding seems to have been instituted and prosecuted before the judges of the first judicial district for the reason that it was claimed on the part of the plaintiffs that “Judges STEARNS and ENSIGN, of the eleventh district, residing at Duluth, where the acts complained of were committed, were disqualified from acting by reason of having an interest in the matter to which the injunction related. Upon the return of the order to show cause before Judge WILLISTON the relators appeared specially, objecting to the jurisdiction of the judges of the first district to proceed in the matter, presenting affidavits to show that Judges STEARNS and ENSIGN were not thus interested, and that the proceedings might have been taken before them at Duluth. The first judicial district adjoins the eleventh.

It is claimed on the part of the relators that the effect of the appeal from the order of Judge MILLS granting the injunction, with the filing of the supersedeas bond, had the effect to suspend the operation of the order during the pendency of the appeal; the case of State v. Duluth St. Ry. Co., 47 Minn. 369,50 N. W. Rep. 332, being cited in support of this proposition. Granting that such would be the effect or an appeal from an appealable order, that would not be the result of an appeal not authorized by law; and we hold that the order from which the appeal was taken was not appealable, but that the relators should first have sought relief in the court below from the order granted ex parte, and without the benefit of such argument or disclosure as the adverse party might have made against the allowance or continuance of the injunction. That appeals will lie from such ex parte orders is opposed to the obvious reason upon which all purely appellate proceedings must be supposed to rest, namely, the necessity of an appeal to correct the error supposed to have been committed. The law attaches much importance to the hearing of both the interested parties, not only as a matter of right to them, but as an aid to courts in the determination of matters brought before them. It is ordinarily to be supposed that a court which may have acted inconsiderately or erroneously upon a one-sided application would perceive and correct its error if the adverse party were heard. An examination of many decisions in this court shows that the general language of the statute declaring the right of appeal has been construed in a limited sense where there has been no real consideration in the court below of the matter in question, with opportunity for the interested parties to be heard, and when it is to be presumed that upon hearing and consideration the court would correct any error which it may have committed. Thus, while an appeal will lie from a judgment of the district court, and while the costs taxed by the clerk and entered in the judgment become a part of it, yet, for error in the judgment in respect to such costs, relief must in the first instance be sought in that court. Jensen v. Crevier, 33 Minn. 372,23 N. W. Rep. 541;Coles v. Berryhill, 37 Minn. 56,33 N. W. Rep. 213;Stevens v. McMillin, 37 Minn. 509,35 N. W. Rep. 372. So relief must first be sought in that court with respect to a judgment entered by the clerk erroneously or without authority of law. Oldenberg v. Devine, 40 Minn. 409,42 N. W. Rep. 88;Lundberg v. Association, 41 Minn. 508,43 N. W. Rep. 394;Scott v. Railroad Co., 42 Minn. 179,43 N. W. Rep. 966. So, where judgment has been directed at the close of a trial without findings of fact, the court below should be appealed to to supply the defect. Williams v. Schembri, 44 Minn. 250, 253, 254,46 N. W. Rep. 403. So where findings of the court are obviously broader than was intended, or are not sufficiently distinct, or do not cover the issues. Smith v. Pendergast, 26 Minn. 318;¹Schulte v. Bank, 34 Minn. 48,24 N. W....