State ex rel. Thatcher v. Horner

• Decision Date: 26 June 1884
• Citation: 16 Mo.App. 191
• Parties: THE STATE OF MISSOURI EX REL. D. C. THATCHER, v. W. H. HORNER, JUDGE, Respondent.
• Court: Missouri Court of Appeals

16 Mo.App. 191

THE STATE OF MISSOURI EX REL. D. C. THATCHER,

v.W. H. HORNER, JUDGE, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 26, 1884.

APPLICATION for a writ of mandamus.

Judgment for the respondent.

DYER, LEE & ELLIS, and KRUM & JONAS, for the relator.

WILBUR F. BOYLE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an application for a writ of mandamus to compel the respondent, who is a judge of the circuit court of the city St. Louis, to compel the officers of a corporation to perform a decree previously rendered by the said court, requiring them to transfer on the books of the corporation certain shares of stock to the relator and to issue to him a certificate therefor. The question for decision arises upon a demurrer to the petition. The petition recites the making of the decree, the service of a copy of it upon Edward P. Barrett, president, and William C. Jones, secretary of the corporation, their refusal to obey the same, the issuing by the court of an order requiring them to show cause on a day named why they should not be punished for contempt in disobeying the same, and the service of such order upon the said Barrett and Jones. It then recites that Barrett and Jones made a return to this order which was “frivolous and insufficient in point of law, and untrue in point of fact.” It then proceeds to set forth wherein the return of Jones, and also wherein that of Barrett was frivolous in point of law and untrue in point of fact, and it then concludes with this averment: “Said relator herein further avers, that the said defendant herein, when he came to discharge said rule for contempt as aforesaid, assigned as the ground for his ruling that the corporation had not kept proper books, and that for that reason he did not see how he could interfere; but that, notwithstanding the said insufficiency of the said return to said order, and notwithstanding the return of the said Barrett and Jones did not show any just or proper cause why they should not be compelled to execute the said decree of said court, yet the said defendant did wilfully refuse to compel the said officers of said corporation to obey and comply with the said decree, and has hitherto refused and now refuses to cause the said decree to be executed and properly enforced in conformity with and in furtherance of the lawful rights of the said plaintiff. Wherefore said plaintiff, relator herein, states that he is without other remedy in the premises, and respectfully prays that a writ of mandamus be issued from this court to the defendant, judge of said circuit court as aforesaid, commanding him to compel the said parties, officers of said corporation as aforesaid, to comply with and obey said decree or show cause why the enforcement of said decree should not be required at his hands.”

If the circuit court had jurisdiction to render the decree set out in the petition, it was a contempt of court for the officer of the corporation to disobey it, no matter how improvident or erroneous the making of it may have been. Partington v. Booth, 3 Meriv. 149, per Lord Eldon, C.; Sullivan v. Judah, 4 Paige, 442; Stempson v. Putnam, 41 Vt. 238; Moat v. Nolbein, 2 Edw. (N. Y.) Ch. 188; The People v. Bergen, 53 N. Y. 404, 410. Compare Franklin v. Smith, 49 Ga. 112; Penn v. Brewer, 12 Gill & J. (Md.) 113. But if the court had no jurisdiction to render the decree, no contempt was committed in disobeying it. Perry v. Mitchell, 5 Den. (N. Y.) 537; The State v. Harper's Bridge Co., 16 W. Va. 364; Harris v. Haines, 35 Mich. 138. Compare The People v. O'Neill, 37 Cal. 109; Swinburn v. Smith, 15 W. Va. 500; The People v. Simonson, 10 Mich. 335. Every court of record in this state has power to punish as for a criminal contempt wilful disobedience of any process or order lawfully made by it. Rev. Stats., sect. 1055. And “when a judgment requires the performance of any other act than the payment of money, a certified copy of the judgment may be served upon the party against whom it is given and his obedience thereto required. If he neglect or refuse, he may be punished by the court as for a contempt, by fine or imprisonment, or both, and, if necessary, by sequestration of property.” Rev. Stats., sect. 3728. The case stated in the petition seems to fall directly within these statutory provisions; and if the court has rendered a decree requiring the officers of a corporation to make a transfer of stock, and they refuse to obey it, it is unquestionably the duty of the court, having regard to the rights of the plaintiff, to the respect due to the administration of justice and to its own dignity, to proceed to enforce the decree by imprisonment as for a criminal contempt. Such an imprisonment has none of the elements of imprisonment for debt.

But while, assuming, as we must for the purpose of our present decision, the facts stated in the petition to be true, the conclusion of the court in the proceeding as for a contempt would seem to have been clearly erroneous, it does not follow that we can revise and correct that decision by mandamus. If the respondent had, on seeing the return of the respondents in the contempt proceeding, merely refused to proceed further, we could, and would, by our writ of mandamus, compel him to proceed; but upon well settled grounds we could not direct him how to proceed, nor command him what judgment to render. But it sufficiently appears from this petition that he did proceed, and that he rendered a judgment discharging the respondents in the contempt proceeding. What we are now asked to do is therefore nothing less than to reverse this judgment by our of writ mandamus and to command the respondent to render a different judgment. This would make the writ of mandamus a mere substitute for an appeal or writ of error.

An order imposing a sentence of fine or imprisonment upon a person for a contempt of court is in the nature of a judgment convicting him of a criminal offence; and when he is imprisoned upon such an order, he is said to be imprisoned in execution. De Gray, C. J., in Crosby's Case, 3 Wilson, 188; Ex parte Kearney, 7 Wheat. 345. See also Ex parte Goodin, 67 Mo. 637. Such an order, in order to be valid, can only be pronounced where the alleged contempt took place out of court, at the end of a proceeding which, though summary in its nature, embraces those essentials of a judicial proceeding which are designated by the term, “due process of law.” There must be an affidavit or the return of an officer, sufficient in substance, informing the court that a contempt has been committed, and stating the facts upon which such conclusion is predicated. Re Judson, 3 Blatchf. (U. S.) 148; Murdock's Case, 2 Bland Ch. (Md.) 461, 486; Ward v. Arenson, 10 Bosw. (N. Y.) 589; Rugg v. Spencer, 59 Barb. (N. Y.) 383, 397; Whittem v. The State, 36 Ind. 196, 217; Wilson v. The Territory, 1 Wyom. T. 155; Matter of Davis, 81 N. C. 72; The State v. Blackwell, 10 S. C. 35; Batchelder v. Moore, 42 Cal. 412, 415; Young v. Cannon, 2 Utah T. 560, 594; Phillips v. Welch, 13 Nev. 158, 165. The accused is entitled to notice and to an opportunity to be heard in his defence. The State v. Matthews, 37 N. H. 450, 454; The People v. Turner, 1 Cal. 152; Sommersett v. Zellers, 2 Halst. (N. J.) 31; Ex parte Langdon, 25 Vt. 680; Worcester v. Truman, 1 McLean (U. S.), 483; Ex parte Ireland, 38 Texas, 344. And a judgment of conviction without according to him this right is absolutely void. The State v. Judges, 32 La. An. 1256. The court proceeds after notice and upon inquiry; it hears before it condemns; it renders its judgment upon deliberation. While dispensing with formality of pleading, the ordinary rules of evidence applicable in criminal proceedings apply. The State v. Gilpin, 2 Del. Ch. 25; Bates' Case, 55 N. H. 325. Where, as in this case, the proceeding is instituted by a party to enforce a civil remedy, it assumes the essential characteristics of an adversary proceeding, and the court does not, as a general rule, confine its inquiry to the answers of the respondent to interrogatories, but it hears evidence produced by both parties. Underwood's Case, 2 Humph. (Tenn.) 46, 49; Childrens v. Saxby, 1 Vern. 207; Magennis v. Parkhurst, 4 N. J. Eq. (3 Gr.) 433; Emery v. Bowen, 5 L. J. Ch. (N. S.) 349; The State v. Harper's Ferry Bridge Co., 16 W. Va. 864, 873; Rutherford v. Metcalf, 5 Hayw. (Tenn.) 58, 61; The State v. Mathews, 37 N. H. 450, 455; Smith v. Smith, 14 Abb. (N. Y.) Pr. 130, 468; Crow v. The State, 24 Texas, 12, 14; Henry v. Ellis, 49 Iowa, 205. The decision of the court, by whatever name it be called, and whether it be in favor of or against the accused, possesses the essential characteristics of a final judgment dispositive of a substantial right. This being so, whilst it is a rule of common-law procedure that an appeal does not lie from a judgment in a proceeding for a criminal contempt, yet it is generally held that where the proceeding is, as in this case, a remedial proceeding as for a contempt, the final judgment or order by which the court ends the proceeding and exhausts its jurisdiction is subject to revision by appeal.

Romeyn v. Caplis, 17 Mich. 449; McCredie v. Senior, 4 Paige, 378; Spaulding v. The People, 10 Id. 264; s. c. on appeal, 7 Hill, 302, and 4 How. Pr. 21; The People v. Sturtevant, 9 N. Y. 209; Ballston Spa Bank v. Marine Bank, 18 Wis. 490; Shannon v. The State, 18 Wis. 604; The People v. Hooley, 48 Barb. 564; Forbes v. Willard, 67 How. Pr. 193; Ludlow v. Knox, 7 Abb. Pr. (N. S.) 411 (in New York Court of App. 1869); Brinkley v. Brinkley, 47 N. Y. 40; Haines v. Haines, 35 Mich. 138; Matter of Davis, 81 N.C. 72; Re Pierce, 44 Wis. 411, 432; Matrons v. Kearney, 79 N. Y. 496; Witter v. Lyon, 34 Wis. 564; Hundhausen v. Insurance Co., 5 Heisk. (Tenn.) 702. There can be no question that an appeal lies from such a judgment or order in this state. Under our statute “every person aggrieved by any final judgment or...