State v. Loud

• Decision Date: 26 October 1900
• Citation: 62 P. 497,24 Mont. 428
• Parties: STATE ex rel. NORTHERN PAC. RY. CO. v. LOUD, Judge.
• Court: Montana Supreme Court

62 P. 497

24 Mont. 428

STATE ex rel. NORTHERN PAC. RY. CO. v. LOUD, Judge.

Supreme Court of Montana

October 26, 1900

Mandamus by the state on the relation of the Northern Pacific Railway Company, against C. H. Loud, as judge of the Seventh judicial district in and for Custer county. Writ granted.

Wm Wallace, Jr., for relator.

Geo. W Farr and Geo. R. Milburn, for respondent.

WORD J.

Application for writ of man date to compel respondent to hear and determine certain proceedings for contempt growing out of an alleged violation by one James B. Kempton of a certain injunction theretofore issued against said Kempton in a certain action in said district court of said county wherein the said Kempton was defendant and Thomas F. Oakes, Henry C. Payne, and Henry C. Rouse, as receivers of the Northern Pacific Railway, were the plaintiffs. The facts are these: On the 18th day of August, 1895, in an action theretofore begun in the district court of the Seventh judicial district, Custer county, Thomas F. Oakes and others as receivers of the Northern Pacific Railway, plaintiffs, obtained a temporary restraining order against said James B. Kempton, defendant, in said action, enjoining him from diverting the water from a certain stream known as "Sand Creek," in said county and state, or from in any way preventing the said plaintiffs from using the water of said stream for the purpose of supplying water to the water tank of the Northern Pacific Railroad Company at the station of Terry, in said county of Custer. Thereafter, on the 31st day of March, 1899, judgment was rendered in said action in favor of said plaintiffs and against said defendant, and the temporary restraining order theretofore issued in said cause was made permanent. On the 6th day of August, 1900, in behalf of the relator herein, affidavits were filed in the said district court of said county, setting forth the facts above given, and further alleging that said James B. Kempton, defendant in said action, had theretofore violated, and then was willfully and maliciously violating, the said injunction order issued on the 18th day of August, 1895, and also the perpetual injunction granted in said cause on the 31st day of March, 1899. Upon the showing made, the respondent, at chambers, caused an order to issue under the seal of said court, and to be served upon said Kempton, requiring him to show cause on the 11th day of August, 1900, why he should not be punished for contempt of court for violating the decree of said court made and entered in said action on the 31st day of March, 1899. Thereafter, on the 11th day of August, 1900, the said Kempton appeared before respondent at chambers, and moved that the proceedings in contempt be dismissed for two reasons, the second of which is as follows: "Because the judge of said district court in vacation had no authority in law to make such rule to show cause, or to hear or determine contempt proceedings for the violation of any order or decree made by said court in term time." The respondent, after hearing argument on said motion, granted the same, and dismissed said proceedings in contempt, for the reasons set forth in the second ground of said motion above given.

If this ruling of the respondent upon the motion to dismiss was correct, then the writ of mandate should not issue; but if under the statute, respondent had the power, and it was his duty, to hear and determine the proceedings in contempt in vacation, then the writ should issue. The position taken by counsel for respondent may be thus stated: A contempt committed in the immediate view and presence of the court, or judge at chambers, under the statute, may be punished summarily (Code Civ. Proc. § 2172); that under this section of the Code a judge at chambers would have the authority to punish as for a contempt the violation out of his presence of an order made by a judge at chambers. But respondent contends that there is no authority given by section 2172, supra, or by any other section of the statutes, by virtue of which a judge at chambers may punish as for a contempt the violation of an order or decree made in term time. To determine the questions presented, it becomes necessary to examine the statutes by which it is claimed the power to punish at chambers, and as for a contempt, disobedience of the judgments or orders of court is given. Section 171 of the Code of Civil Procedure, among other things, provides: "The judge of the...