State v. Nathans

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJONES
Citation49 N.C. 199,27 S.E. 52
Decision Date19 April 1897
PartiesSTATE v. NATHANS et al.

27 S.E. 52
49 N.C. 199

STATE
v.
NATHANS et al.

Supreme Court of South Carolina.

April 19, 1897.


Contempt—Disobedience of Erroneous Order —Proceedings to Punish—Rights of Suitors and Attorneys—Violation of Injunction-Powers of Judge in Chambers—Disbarment of Attorneys.

1. The disobedience of the order of a court having jurisdiction of the subject-matter and of the parties, while such order is in force, is a contempt, however erroneous the order may have been.

2. A proceeding for contempt, unless used as a coercive remedy to compel the performance of an act to which a suitor is entitled, is a special criminal proceeding, distinct from the cause in which it may arise, and the reversal of an order in such cause does not affect proceedings for contempt in disobeying it while in force.

3. While it is a fatal objection to a rule to show cause in contempt that it is not based on an affidavit, unless the contempt was committed in the immediate presence of the court, such objection may be waived; and where the person proceeded against answers and makes no objection on that ground during the proceedings, he cannot raise it on appeal.

4. A state court, at the suit of certain stockholders, enjoined the officers of a Corporation from interfering in any manner with its property, and its creditors from prosecuting any action against it except in said cause, and fixing a day for hearing an application for the appointment of a receiver. Before such day a nonresident creditor, who had not been served with process in said action, or the injunction order, sued the corporation in a federal court, and procured the appointment of a receiver, who took possession of its property. A receiver was afterwards appointed by the state court, who applied to the federal court for a rule against its receiver and the corporation to show

[27 S.E. 53]

cause why the property should not be turned over to him. Held, that the filing of sworn returns to such rule by the receiver of the federal court, and by the president of the corporation in its behalf, in which they set up, in decorous language, what they deemed their rights, respectively, could not be made the basis of contempt proceedings against them in the state court for a violation of the injunction order.

5. Nor would the filing of cross bills by other creditors of the corporation defendant, in the action in the federal court, in which they were served as defendants, subject them, or the attorneys acting for them, to punishment for contempt by the state court for the violation of its injunction, with which they had been served, as the federal court had jurisdiction of the action, and they had the legal right to appear and protect their interests involved therein.

6. An order, made on the hearing of a rule against an attorney for contempt, which does not adjudge him in contempt, but directs that the rule be discharged on his giving satisfactory assurance that he will not oppose the withdrawal of an action pending in another court, but will co-operate in an effort to have it withdrawn, imposes an illegal condition.

7. A nonresident creditor of a corporation, not personally served with a copy of the order within the state, is not bound by an injunction restraining creditors from prosecuting actions against the corporation.

8. An attorney cannot be adjudged guilty of contempt because, after the entry of an order enjoining the creditors of a corporation from prosecuting any actions against it, in a proceeding in which he represented a creditor of the corporation, he advises and brings an action in another court against the corporation on behalf of another client, who was a nonresident and not bound by the injunction.

9. While a judge in chambers can attach for civil contempt, to enforce obedience to his orders, an order imposing a punishment for contempt is the act of the court, and must be made publicly in open court. Such an order entered by a judge in chambers is void.

10. A judge in chambers has no power to suspend or disbar an attorney from practicing in the courts.

Appeal from circuit court, Charleston county; W. C. Benet, Judge.

Proceedings for contempt against J. N. Nathans, James Simons, Julian Mitchell, Henry A. M. Smith, Huger Sinkler, John H. Doscher, A. F. C. Cramer, and E. H. Sparkman for violating and disregarding an order of injunction entered in the action of Theodore Wenzel and another against the Palmetto Brewing Company and others. Prom an order adjudging the defendants in contempt, and imposing sentence therefor, they appeal, Reversed.

Lord & Burke, Edward McCrady, J. P. K. Bryan, W. C. Miller, Huger Sinkler, James Simons, and Mitchell & Smith, for appellants.

Wm. A. Barber, Atty. Gen., for the State.

JONES, J. This is an appeal from an order of Benet, circuit judge, adjudging the defendants guilty of contempt,, and imposing sentence therefor, upon a rule to show cause issued in the case of Theodore Wenzel et al. against the Palmetto Brewing Company et al. The alleged contempt was disobedience of an order—made in said case—appointing a receiver, and enjoining creditors and stockholders of the Palmetto Brewing Company from prosecuting any action against the said company except in said cause. On appeal taken from this order, this court reversed the same on the ground that the complaint in the cause did not state facts sufficient to justify a court of equity in displacing corporate control of the company's property at the suit of a stockholder. See Wenzel v. Brewing Co., 48 S. C. 80, 26 S. E. 1. A preliminary question was argued, whether the reversal of that order, out of which the contempt proceedings grew, would operate to annul the contempt proceedings. We hold that the order of injunction by Judge Benet was not void, but was merely erroneous and voidable. "The weight of adjudged cases sustains the proposition that the judgment of a domestic court of general jurisdiction is not void except where the court has no jurisdiction over the subject-matter of the suit, or where, having such jurisdiction over the subject-matter, it is shown by the record to have no jurisdiction over the judgment defendant." Freem. Judgm. § 116; Turner v. Malone, 24 S. C. 398. The circuit court had undoubted jurisdiction over the defendant in the case of Wenzel et al. against the Palmetto Brewing Company et al. (except the De La Vergne Refrigerating Machine Company); and it had undoubted jurisdiction over the subject-matter of the suit, the property and business of the Palmetto Brewing Company, and the rights of stockholders and creditors with respect thereto, with power to appoint a receiver for an insolvent corporation of this state, and to restrain suits against said corporation; and this, too, on the suit of a minority stockholder. The complaint failed in not stating facts sufficient to justify the court in interfering with the corporate management. It was as if, in a suit to foreclose a mortgage of realty, the complaint had failed to allege the execution of the mortgage. On demurrer on the ground that the complaint did not state a cause of action, the complaint would be held insufficient, but it by no means, could be said that for that reason the court had no jurisdiction of the subject-matter of the suit A court may have jurisdiction of the subject-matter of a suit, and yet commit reversible error in maintaining or retaining jurisdiction of the suit The subject-matter of a suit is one thing, and the suit thereon is another. The correct rule is stated in Rapalje thus: "The disobedience of any order, judgment, or decree of a court having jurisdiction to issue it is a contempt of that court, however erroneous or improvident the issuing of it may have been. Such order is obligatory until reversed by an appellate court, or until corrected or discharged by the court which made it But if, in making such order, the court was without jurisdiction, disobedience of it is not a contempt." This is the law in this state. Carr v. Scott, Riley, 26, *193; James v. Smith, 2 S. C. 188; In re Stokes, 5 S. C. 71; Watson v. Bank, Id. 159. The determination of the question presented in

[27 S.E. 54]

volves a consideration of the nature of proceedings in contempt.

In 4 Enc. Pl. & Prac. 766, it is stated: "While contempt of court, in its essential character, is divided into various kinds, such as direct and constructive, civil and criminal, still, in every species of contempt, whatever may be the ultimate object of the redress sought in any individual case (i. e. private compensation or public vindication), there is necessarily inherent an element of offense against the majesty of the law, savoring more or less of criminality. And hence the almost universal doctrine, as laid down by the courts, is that process by which the party charged is reached and tried—be the adjudication wholly punitive, wholly remedial, or partaking of both qualities—is essentially criminal, or quasi criminal." Mr. Bishop, in his work on Criminal Law (6th Ed., volume 2, p. 149), in the chapter on "Contempt of Court, " says: "The offense of contempt of court is against the state, not the judge or the party in the cause. Therefore the proceeding should properly be entitled as of the state against the one in contempt." Mr. Justice Story, in Ex parte Kearney, 7 Wheat, 38, said: "When a court commits a party for a contempt, their adjudication is a conviction, and their commitment is execution." In this case the supreme court held that It could not revise the judgment of the circuit court adjudging the party guilty of contempt, because it had no appellate jurisdiction in criminal cases. In New Orleans v. Steamship Co., 20 Wall. 392, Mr. Justice Swayne, delivering the opinion of the court, said: "Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were a judgment upon an indictment for perjury committed in a deposition read at the...

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32 practice notes
  • Laramie National Bank v. Steinhoff
    • United States
    • United States State Supreme Court of Wyoming
    • 1 Junio 1898
    ...one who has disobeyed the order is precluded from attacking or questioning its validity or correctness. (State v. Nathans (S. C.), 27 S.E. 52; Leopold v. People (Ill.), 30 N.E. 349; Clark v. Burke (Ill.), 45 N.E. 236; White v. Sup. Court (Cal.), 42 P. 482; Ray v. R. R. Co., 47 N. Y. S., 301......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 Octubre 1916
    ...315; In re McKenna, 47 Kan. 738, 28 P. 1078; Thomas v. People, 14 Colo. 254, 23 P. 326, 9 L.R.A. 569; State v. Nathans, 49 S.C. 199, 27 S.E. 52, 57. None of said cases tend in any manner to sustain the proposition that informations charging criminal contempt must be verified, not upon infor......
  • In re Bible, Bankruptcy No. 90-10048.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Georgia
    • 23 Febrero 1990
    ...of officers of the court. . . ." Clamp v. Hall, 287 S.C. 270, 335 S.E.2d 815 (Ct.App.1985) quoting State v. Nathans, 49 S.C. 199, 207, 27 S.E. 52, 55 (1896). "Sanctions for contempt, of course, may entail imprisonment; however, imprisonment for contempt can be remedial as well as ......
  • Ex parte Browne, No. B--5937
    • United States
    • Supreme Court of Texas
    • 27 Octubre 1976
    ...665, 48 L.Ed. (997) 1002, 1004; Worden v. Searls, 121 U.S. (14) 27, 7 S.Ct. 814, 30 L.Ed. (853) 858; State v. Nathans, 49 S.C. (199) 207, 27 S.E. 52. The criminal sentences imposed in the civil case, therefore, should be set aside.' (Pp. 451--452, 31 S.Ct. at Relators also assert that there......
  • Request a trial to view additional results
32 cases
  • Laramie National Bank v. Steinhoff
    • United States
    • United States State Supreme Court of Wyoming
    • 1 Junio 1898
    ...one who has disobeyed the order is precluded from attacking or questioning its validity or correctness. (State v. Nathans (S. C.), 27 S.E. 52; Leopold v. People (Ill.), 30 N.E. 349; Clark v. Burke (Ill.), 45 N.E. 236; White v. Sup. Court (Cal.), 42 P. 482; Ray v. R. R. Co., 47 N. Y. S., 301......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 Octubre 1916
    ...315; In re McKenna, 47 Kan. 738, 28 P. 1078; Thomas v. People, 14 Colo. 254, 23 P. 326, 9 L.R.A. 569; State v. Nathans, 49 S.C. 199, 27 S.E. 52, 57. None of said cases tend in any manner to sustain the proposition that informations charging criminal contempt must be verified, not upon infor......
  • In re Bible, Bankruptcy No. 90-10048.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Georgia
    • 23 Febrero 1990
    ...of officers of the court. . . ." Clamp v. Hall, 287 S.C. 270, 335 S.E.2d 815 (Ct.App.1985) quoting State v. Nathans, 49 S.C. 199, 207, 27 S.E. 52, 55 (1896). "Sanctions for contempt, of course, may entail imprisonment; however, imprisonment for contempt can be remedial as well as ......
  • Ex parte Browne, No. B--5937
    • United States
    • Supreme Court of Texas
    • 27 Octubre 1976
    ...665, 48 L.Ed. (997) 1002, 1004; Worden v. Searls, 121 U.S. (14) 27, 7 S.Ct. 814, 30 L.Ed. (853) 858; State v. Nathans, 49 S.C. (199) 207, 27 S.E. 52. The criminal sentences imposed in the civil case, therefore, should be set aside.' (Pp. 451--452, 31 S.Ct. at Relators also assert that there......
  • Request a trial to view additional results

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