State v. Knight

• Decision Date: 15 February 1893
• Citation: 54 N.W. 412,3 S.D. 509
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. DANIEL KNIGHT and Daniel Hubbard, Plaintiffs in error.
• Court: South Dakota Supreme Court

3 S.D. 509

54 N.W. 412

44 AmStRep 809 (1893)

STATE OF SOUTH DAKOTA, Defendant in error,

v.

DANIEL KNIGHT and Daniel Hubbard, Plaintiffs in error. South Dakota Supreme Court Error to Circuit Court, Marshall County, SD Hon. A. W. Campbell, Judge Affirmed H. R. Turner, Taubman & Potter Attorney for plaintiffs in error. Robert Dollard, Attorney General, J.H. McCoy, Attorneys for defendant in error. Opinion filed Feb. 15, 1893

BENNETT, P. J.

On the 17th day of October, 1891, an order was made by the judge of the fifth judicial circuit, directed to A. M. Knight, his agents and attorneys, restraining them from making a sale by advertisement of certain mortgaged property. The sale under said foreclosure had been previously fixed for 2 o’clock p. m. on the 17th day of October, at Langford, S. D., distant from the place where the order was made some 50 miles. About 1 o’clock of that day one La Due, the mortgagor in said mortgage, received the following telegram, written upon one of the Western Union Telegraph Company’s blanks: “Aberdeen, S. D. 10-17, 1891. To Frank La Due, Langford, S. D.: Have signed order restraining sale under mortgage, Frank La Due to A. M. Knight. A. W. Campbell.” A. W. Campbell was the judge of the fifth judicial circuit, but did not sign the telegram officially. This telegram was exhibited to the defendants, Daniel Knight and Daniel Hubbard, the agents of A. M. Knight, a short time before the sale, by La Due, the mortgagor, who requested them to refrain from selling the property. The defendants disregarded the telegram, and proceeded to make the sale. Upon an affidavit setting out these facts the judge made an order requiring the defendants to appear at the January term, 1892, of the circuit court of Marshall county, and show cause why they should not be punished for contempt for willfully disobeying his order. Upon the return day the defendants appeared, and, after hearing the evidence in the case, the defendants were adjudged guilty of contempt, and fined $25 each, and ordered committed to the county jail until said fine was paid. To this order the writ of error is issued.

We are confronted at the threshold with the objection that a writ of error does not lie in a case of this character. If the objection be well taken, it is certainly fatal to this proceeding, and the only order that can properly be made by this court is one dismissing the writ. At common law, judgments of superior courts of record in matters of contempt were final, and not revisable in any other court upon appeal or writ of error. By statute in some states the remedy by appeal and writ of error has been given. There is no good reason, however, in any case that we have examined, why cases of contempt are not subject to review in some manner by an appellate court. Ex parte Rowe, 7 Cal. 175; Ex parte Langdon, 25 Vt. 680; Railroad Co. v. City of Wheeling, 13 Grat. 40; Stuart v. People, 3 Scam. 395; Yates v. People, 6 Johns. 337. The power to punish for contempt is one of the highest prerogatives of a court of justice, and is inherent in it. Without it the citizen would be without protection or security, and upon its bold and prudent exercise depend the respect, the dignity, and efficiency of courts of justice as arbiters of human rights. The mandates of a court must in all cases be obeyed. Cossart v. State, 14 Ark. 541; Ex parte Robinson, 19 Wall. 505; Ex parte Smith, 28 Ind. 47; In re Moore, 63 N. C. 397; State v. Earl, 41 Ind. 464; Taylor v. Moffitt, 2 Blackf. 305; People v. Pirfenbrink, 96 Ill. 68. If wrong be done a citizen by error of facts or judgment in the exercise of this power, there must be some channel of redress provided by law to rectify the wrong. In the absence of statutory enactments, there must be some tribunal to review and correct this error, and some road leading to that tribunal which aggrieved parties may take to reach it. The practice of bringing up for the consideration of appellate courts contempt proceedings by writ of error to the final judgment has been allowed in many of the states. See cases cited above; Winkelman v. People, 50 Ill. 449; Butler v. People, 2 Colo. 295; Storey v. People, 79 Ill. 45; Myers v. State, (Ohio Sup.) 22 N.E. 43; Wyatt v. People, (Colo. Sup.) 28 Pac. 961. In other states the writs of certiorari and habeas corpus have been resorted to. State v. District Court, (Minn.) 42 N.W. 598; State v. Webber, (Minn.) 37 N.W. 949; In re Fanning, (Minn.) 41 N.W. 1076; Batchelder v. Moore, 42 Cal. 413. But under our statute it would seem that the writ of error was the most appropriate mode to reach the desired end. Under the common law writs of error were considered writs of right, and issued of course in all criminal cases not capital. In capital criminal cases it was a writ of grace, and issued on motion or petition. See Yates v. People, 6 Johns. 372, where a large number of cases are cited, and an able and extensive exposition of proceedings in contempt is made by the court. Under our statute, writs of error are used to remove to this court, for examination and review, the record in criminal actions; these writs to be allowed in all cases from the final decisions of inferior courts, under such regulations as are prescribed by law. The writ may be sued out by the defendant from a final judgment of conviction, from an order refusing a motion in arrest of judgment, or from an order refusing a new trial. See sections 7499, 7500, 7502, Comp. Laws. The question of review by writ of error would then seem to rest upon the proposition as to whether contempt of court is a specific criminal offense or not. It is no doubt true that attachment for contempt is sometimes regarded as process in a civil action.

Blackstone (in book 4, c. 20) treats of contempt under the head of “Summary Convictions.” They are classed with other misdemeanors, from which they are distinguished only by the mode in which they are prosecuted; every superior court being necessarily invested with jurisdiction to punish contempt of its authority by summary process. After enumerating the different species of contempt, he mentions “those committed by parties to any suit or proceeding before the court, as by disobedience of any rule or order made in the progress of a cause, by nonpayment of costs awarded by the court upon a motion, or by nonobservance of awards duly made by arbitrators or umpires, after having entered into a rule for submitting to such determination. Indeed, the attachment for most of the species of contempt, and especially for nonpayment of costs and nonperformance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process of contempt of the authority of the court; and therefore it hath been held that such contempt, and process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by the general act of pardon.” Then by a parity of reasoning it would seem that civil contempts would be appealable under the provision of the statute regulating appeals. But the question remains whether the contempt alleged against the plaintiffs in error in the case at bar is one of these. It arose in the alleged disobedience of an injunction order restraining the plaintiffs in error from foreclosing a mortgage, and so far it would probably come within those classes of cases described by Blackstone in the above quotation. His language is “most of the species,” and the examples given in illustration are of nonpayment of costs and nonperformance of awards. These examples clearly indicate the criterion by which it may be determined whether the process is civil or criminal. If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment. In one case the private party is interested in the enforcement of the order, and, the moment he is satisfied, the imprisonment ceases. On the other hand, the state alone is interested in the enforcement of the penalty, it being a punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases. This rule, as definitely stated, has not been expressly recognized by any case coming under our observation, but is consistent with all the decisions. New Orleans v. Steamship Co., 20 Wall. 387; Railroad Co. v. Wheeling, 13 Grat. 57; Ex parte Kearney, 7 Wheat. 38; Stuart v. People, 3 Seam. 395; Ex parte Thatcher, 2 Gilman, 170; Crook v. People, 16 Ill. 536.

In the case of Ex parte Thatcher, supra, Justice Scates said: “It is indeed denied that any appeal or writ of error lies from its judgment for contempt by any court. I will not undertake to decide the general question, but the power has its limits. The court may not treat any and every act as a contempt, and I have no doubt that the appellate court may revise and reverse its judgment when it exceeds its jurisdiction by treating that as a contempt which in law is no contempt, and cannot be. The supervision will be to ascertain that fact.” This case was brought to the supreme court by writ of error. In the case of New Orleans v. Steamship Co., Judge Swayne, in delivering the opinion of the court, said: ...