State Ex Rel. P. A. McNinch v. A's

• Decision Date: 17 April 1928
• Docket Number: (No. 6119)
• Court: West Virginia Supreme Court
• Parties: State ex rel. P. A. McNinch v. A. A. Porter et a's.

105 W.Va. 441

State ex rel. P. A. McNinch

v.A. A. Porter et a's.

(No. 6119)

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1928.

Decided April 17, 1928.

1. Contempt Party Having Probable Cause for Swearing Out Warrant for Arrest of Officer Executing Writ of Possession May Not be Summarily Punished for Contempt (Code, c. U7, § 27).

One may not be proceeded against and punished summarily for contempt under section 27 of chapter 147, Barnes' Code 1923, for swearing out a warrant for the arrest of an officer for assaulting him while executing a writ of possession for the property of which he was tenant in possession, when it appears that there was probable cause justifying the complaint on which the warrant was issued, and the complaint and arrest were not made until after he had signed a paper acknowledging the ownership of the party to be put in possession by the writ and his tenancy under such party as an alternative to being dispossessed, (p. 443.)

(Contempt, 13 C. J. § 43.)

2. Same Regardless of Common-Law Rights, Circuit Court May Not Punish Summarily, as for Contempt, Acts Not Enumerated in Statute (Code, c. 14-7, § 27).

Notwithstanding the common-law right of courts to punish for contempt, a circuit court may not proceed and punish summarily for acts other than those enumerated in section 27 of chapter 147 of the Code. (p. 445.)

(Contempt, 13 C. J. § 62.)

3. Same Writ of Error Lies From Supreme Court of Appeals to Circuit Court in Contempt Cases Other Than Where Charge* is Nonperformance, or Disobedience, to Judgment, Decree, or Order (Code, c. 160, $4).

By section 4 of chapter 160 of the Code, a writ of error will lie from the supreme court of appeals to a judgment of a circuit court in contempt cases other than where the charge is non-performance of, or disobedience to a judgment, decree or order of such court, (p. 446.)

(Contempt, 13 C. J. § 155.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Marshall County.

Proceeding' by the State, on the relation of P. A. McNineh, Sheriff of Marshall County, against A. A. Porter and others, for contempt. Judgment finding the named defendant guilty, and he brings error.

Judgment reversed; complaint dismissed.

Chauncey D. Ilinerman and D. B. Evans, for plaintiff in error.

Martin Brown and McCamic & Clarke, for defendant in error.

Miller, President:

P. A. McNineh, sheriff of Marshall county, prosecuted the present proceeding for contempt in the circuit court of said county, against A. A. Porter, T. C. Pipes, and Wylie MeCardle, for 'resisting and interfering with deputy sheriff Benton Hazlett in the service of a writ of possession, the complaint charging that "the action of the said A. A. Porter in swearing out a wrarrant against the deputy, Benton Hazlett, through the office of said T. C. Pipes, justice of the peace, and placing the same in the hands of Constable McCardle, was a contempt of the court under section 27, of chapter 147, of the Code of West Virginia, in this, to-wit: disobedience and resistance of an officer of the court to a lawful process, judgment, decree or order of this court, and was for the purpose of deterring and intimidating the officers of the court to keep them from executing the due process of the court;" and further "that he is informed and believes from all the facts and circumstances in the case, and therefore charges the fact to be, that the said A. A. Porter conferred with the said T. C. Pipes, justice of the peace as aforesaid, and Wylie McCardle, constable as aforesaid, all of whom entered into a conspiracy for the purpose of obstructing, hindering and delaying the officers of the circuit court of Marshall county, West Virginia, from executing the said lawful process of said court, and that the said A. A. Porter, by loud, boisterous and threatening language previous to the swearing out of the said complaint before said justice, attempted to provoke a breach of the peace with the said Benton Hazlett, who is a qualified deputy sheriff of said Marshall county, in the State of West Virginia," The complaint alleges that Hazlett committed no violation of the laws of the State, and did nothing on which to base the said complaint made before the justice. The warrant was for the arrest of Hazlett for an alleged assault on Porter.

On a summary trial before the circuit court the justice and constable were dismissed from the proceeding for want of evidence against them, but Porter was found guilty of the charge of contempt, and was fined $50.00.

From the evidence adduced before the circuit court it appears that on the day before the act charged in the complaint in the contempt proceeding, Deputy Sheriff Parks, in company with counsel for Mrs. Elizabeth McConaughey, with a writ of possession issued out of the circuit court of Marshall county to put Mrs. McConaughey in possession of property recovered by her in an action of ejectment, served copies of the writ on the tenants in possession of the property. The officer and the lawyer also presented to these tenants to be signed by thean what are denominated "attornment papers, " acknowledging trie ownership of Mrs. McConaughey and their tenancy under her. Porter and some of the other tenants refused to sign the papers at the time. The next day deputy sheriffs Parks and Hazlett returned and again asked the tenants to sign the papers, and indicated that they would have to put them and their property out of the building if they did not sign. During the argument that ensued, Porter claims that Hazlett assaulted him. From the evidence of what took place at the time, it would appear that probable cause existed justifying Porter in swearing out the warrant for assault, A number of witnesses testified that Hazlett struck Porter, and no one says that Porter struck the officer. All the tenants, however, including Porter, signed the papers, with the exception of one Stephens, who signified his willingness to do so if he cordd have a copy of the same. He and the officers went to a bank nearby to have a copy made. In the meantime Porter went to the office of the justice of the peace, T. C. Pipes, and swore out a warrant for the arrest of Hazlett. The warrant was placed in the hands of Constable McCardle, who, upon inquiry, learned that Hazlett was at the bank. The...