State Ex Rel v. Harness

• Decision Date: 25 November 1896
• Citation: 42 W.Va. 414,26 S.E. 270
• Parties: STATE ex rel. BETTMAN et al. v. HARNESS et al.
• Court: West Virginia Supreme Court

26 S.E. 270

42 W.Va. 414

STATE ex rel.BETTMAN et al.

v.HARNESS et al.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1896.

Contempt — Violation of Injunction Pending Appeal—Jurisdiction.

1. A motion to dissolve an injunction being overruled, an appeal and supersedeas is taken to the order overruling the injunction.

2. The court awarding the injunction, not the supreme court, has jurisdiction of a proceeding for contempt for its violation.

(Syllabus by the Court.)

Action by Bettman & Watson against Thomas B. Harness and others. Judgment for plaintiffs. Defendants appeal. Motion by appellants to discharge a rule awarded against them for contempt. Granted.

Van Winkle & Ambler, for petitioners.

W. P. Hubbard, for respondents.

BRANNON, J. Bettman & Watson obtained from a judge of a circuit court an injunction against Harness and others, restraining them from boring for oil on certain premises, and, from an order overruling a motion to dissolve it, the defendants took an appeal and supersedeas to this court, pending which the defendants violated the injunction, and the plaintiffs instituted in this court a proceeding for contempt, which we now decide. An appeal and supersedeas to a decree or order dissolving an injunction keeps it in force pending the appeal, and acts prohibited by the injunction constitute contempts. As when once the injunction ceases by reason of its dissolution it is gone, a mere appeal does not restore it, unless some order or process staying or superseding the act of dissolution keeps the injunction alive. An appeal with supersedeas does this. State v. Bridge Co., 16 W. Va. 864; 1 Beach, Inj. § 283; 2 High, Inj. § 1709; Knox Co. v. Harsh-man, 132 U. S. 14, 10 Sup. Ct. 8. It is plainer still that when the order or decree refuses to dissolve or perpetuates the injunction, an appeal, or appeal and supersedeas, does not impair the injunction, and acts forbidden by it are contempts. 1 Beach, Inj. § 1699. Which court punishes for the contempt? When an appeal is perfected, the jurisdiction of the appellate court over the subject-matter and parties attaches, and the trial court has no power to render any further decision affecting the parties in the cause until remanded. Dunbar v. Dunbar, 5 W. Va. 567; McLaughlin v. Janney, 6 Grat. 609; 2 Enc. Pl. & Prac. 327. But be not misled by this to conclude that this determines that in all cases contempt proceedings must be in the appellate court. The principle just stated means only that after appeal the lower court can do nothing more in the case, order nothing further within the scope of the case as relief, except to preserve the property. The appeal, however, does not cover matters not embraced within the issues made by the record, though such matters may grow out of the same subject. Elliott, App. Proc. § 545. A proceeding for contempt in disobeying an injunction is not one in or a part of the case, but is outside of it, and is a criminal procedure. Alderson v. Commissioners, 32 W. Va. 640, 648, 9 S. E. 868. Where there is a dissolution, and an appeal and supersedeas, State v. Bridge Co., 16 W. Va. 864, holds that such contempt proceeding must be in the appellate court. It was doubted in Turner v. Scott, 5 Rand. (...